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62d Congress 
2d Session 


SENATE 


Document 


No. 944 


LIMITING 

FEDERAL INJUNCTIONS 


¥?T 



ARGUMENT 


OF 


THOMAS CARL SPELLING, ESQ. 


OF NEW YORK, N. Y, 


BEFORE A 


SUBCOMMITTEE OF THE COMMITTEE ON THE 
JUDICIARY, UNITED STATES SENATE, ON 
AUGUST 13, 1912, ON THE BILL H. R. 23635, AN 
ACT TO AMEND AN ACT ENTITLED ‘‘AN ACT 
TO CODIFY, REVISE, AND AMEND THE LAWS 
RELATING TO THE JUDICIARY,” APPROVED 


MARCH 3. 1911 



PRESENTED BY MR. MARTIN 


AUGUST 24, 1912.—Ordered to be printed 


WASHINGTON 

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LIMITING FEDERAL INJUNCTIONS. 


Statement of Thomas Carl Spelling, Esq., of New York City. 


Mr. Spelling. Mr. Chairman and members of the committee, I 
come before you to speak in support of what is known as the Clayton 
injunction bill, at the request of labor organizations, at the head of 
which is the American Federation of Labor, but feel sure that what 
I advocate is also for the more general welfare. 

This is a very broad question and very important. It is hardly 
necessary for me to tell wherein its importance consists. The counsel 
for the opposition have shown you wherein its importance consists 
from their standpoint. There has not been a phase of the differences 
between capital and labor but has been exploited by the opposition at 
this hearing. The records to date, containing exclusively the argu¬ 
ments of counsel in opposition, which I am expected to answer, in 
addition to explaining the bill, occupy over 400 pages. 

There is a vast financial advantage in having the courts protect 
what is the basis of all these injunctions—the right to do business, 
so called. They present to the court something called a complaint. 
It is vague, lacking in legal requisites, full of defects. The judges do 
not take the time to scrutinize these complaints. Then they get a 
restraining order, and usually get what is in reality a far-reaching 
injunction in the first instance that commands or forbids the work¬ 
ing people, against whom the proceedings are instituted, to refrain 
from doing certain things. Some of those things, under some certain 
circumstances, might be legally and properly forbidden; but using 
that as a nucleus around which to frame the balance of the restraining 
order, they forbid them to do not only what is illegal, but what men 
ordinarily do and are entitled to do as a constitutional privilege. 

These are some of the abuses that are an indication of that con¬ 
dition to remedy which this bill is intended. 

What the courts do, or some of them—I do not indict all the 
courts—even where the court has undoubted jurisdiction, is to enact 
a species of legislation. That is the very nature of an injunction. 
I will read to vou what Justice Baldwin, of the Supreme Court, said 
about that in Bonaparte v. Railroad Company (217 Fed. Cases, 1617): 

There is no power, the exercise of which is more delicate, which requires greater 
caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, 
than the issuing of an injunction. It is the strong arm of equity, that never ought to 
be extended unless in cases of great injury, where courts of law can not afford an 
adequate or commensurate remedy in damages. The right must be clear, the injury 
impending or threatened, so as to be averted only by the protective preventive process 

3 




4 


LIMITING FEDERAL INJUNCTIONS. 


of injunction; but that will not be awarded in doubtful cases, or new ones not coming 
within well-established principles, for if it issues erroneously, an irreparably injury 
is inflicted for which there can be no redress, it being the act of a court, not of the 
party who prays for it. It will be refused till the courts are satisfied that the case 
before them is of a right about to be destroyed, irreparably injured, or great and lasting 
injury about to be done by an illegal act. 

That is in a case when the court has undoubted jurisdiction to 
issue an injunction—this legislation. It is proposed in this bill to 
provide certain safeguards at the very outset when an injunction is 
applied for. That is in the first section. These provisions to limit 
and restrict the courts and provide specific procedure are not as 
strict as those provided in the Constitution, in the rules of either House 
of Congress or any legislative body, to govern Senators and Members 
of either House in the enactment of legislation regularly enacted. 
As the present law stands, there is no provision, either in the statute 
or elsewhere, to govern or limit the courts in this matter of procedure, 
to prevent abuses in the matter of issuing injunctions and restraining 
orders. 

It is certainly legitimate and proper, even in a proper case, that 
the courts should be restrained and controlled by specific legislation, 
because when an injunction goes out in a labor dispute against 
strikers, it indicates that some great judicial authority has examined 
the merits of the controversy between the parties and decided against 
one party, and it has a disastrous effect in the very nature of things. 

PROVISIONS OF CLAYTON BILL. 

I read now section 263, being a part of the first section of the bill, 
with which you are all familiar: 

Sec. 263. That no injunction, whether interlocutory or permanent, in cases other 
than those described in section 266 of this title, shall be issued without previous 
notice and an opportunity to be heard on behalf of the parties to be enjoined, which 
notice, together with a copy of the bill of complaint or other pleading upon which 
the application for such injunction will be based, shall be served upon the parties 
sought to be enjoined a reasonable time in advance of such application. 

But if it shall appear to the satisfaction of the court or judge that immediate and 
irreparable injury is likely to ensue to the complainant and that the giving of notice 
of the application or the delay incident thereto would probably permit the doing 
of the act sought to be restrained before notice could be served or hearing had thereon, 
the court or judge may, in his discretion, issue a temporary restraining order without 
notice. Every such order shall be indorsed with the date and hour of issuance, 
shall be forthwith entered of record, shall define the injury and state why it is irrep¬ 
arable and why the order was granted without notice, and shall, by its terms, 
expire within such time after entry, not to exceed seven days, as the court or judge 
may fix, unless within the time so fixed the order is extended or renewed for a like 
period, after notice to those previously served, if any, and for good cause shown, 
and the reasons for such extension shall be entered of record. 

The formalities and safeguards here provided in section 263, the 
same being amendatory of the section of that number in the Judicial 
Code, are only such as are necessary in view of what I have already 
set forth and of what was said by justice Baldwin in the case cited. 

Section 266a adds a new section to the code to require security in 
all cases and reads as follows: 

Sec. 266a. That no restraining order or interlocutory order of injunction shall 
issue except upon the giving of security by the applicant in such sum as the court 
or judge may deem proper, conditioned upon the payment of such costs and dam¬ 
ages as may be incurred or suffered by any party who may be found to have been 
wrongfully enjoined or restrained thereby. 


LIMITING FEDEKAL INJUNCTIONS. 


5 


I now read from Foster’s Federal Practice, page 753: 

Later the practice—i. e., the practice as to security—was extended to interlocutory 
injunctions granted upon notice to the defendant, first in special cases, then generally; 
and now they—that is, bonds—are usually required as a matter of course in England 
'and in most of the United States, although in some of the circuits the Federal judges 
are accustomed to grant injunctions without such requirement. 

Section 266b of the bill also adds a new section to the code. It 
reads as follows: 

Sec. 266b. That every order of injunction or restraining order shall set forth the 
reasons for the issuance of the same, shall be specific in terms, and shall describe in 
reasonable detail, and not by reference to the bill of complaint or other document, 
the act or acts sought to be restrained; and shall be binding only upon the parties to 
the suit, their agents, servants, employees, and attorneys, or those in active concert 
with them, and who shall by personal service or otherwise have received actual notice 
of the same. 

There can be no greater justice than that parties upon whom the 
edict of a judge falls, often without notice, shall know the exact con¬ 
dition in which it places him; and there can be no greater injustice, 
no greater cruelty, I might say, than to impart to him merely a vague 
or indefinite understanding that his past or present conduct has been 
already condemned by the court, leaving him to guess as to his proper 
deportment, groping in darkness with fear and trembling lest he be 
dragged before a single judge and sentenced to imprisonment for acts 
whick may have been done in a belief that he was not answerable 
before a court. 

I can not describe all the defects of process by which the parties 
served are left in doubt and perplexity and exposed to oppression and 
injustice. But it is a common bad practice to include in these writs 
and orders at the end an omnibus or basket clause forbidding all other 
acts of similar character, or referring for further details to the prayer 
of the bill, in the hope that anything which might have been omitted 
by the zealous lawyer will be corrected by the court when the time 
comes for punishing the party for contempt. 

It is claimed that the present practice affords ample safeguards; 
that there are no precedents justifying the provisions of this section. 
In view of my investigation and study, the results of which I intend 
laying before" this committee, I can scarcely conceive of a greater 
untruth. The present law affords no security whatever against 
vague, indefinite, ambiguous, misleading, bewildering commands of 
the courts. The Supreme Court rules, which have been again and 
again referred to, do not help us any herein. They neither cover the 
subject nor do they conflict with anything in this section. I will 
not take time to read to you the Supreme Court rules, but throw out 
this challenge, that counsel may call any conflicting provision which 
they can find to the attention of the committee. 

Among the many authorities I might cite as to what is proper, 
commendable, and salutary in practice, which is no more than is 
aimed at in this section, is Foster’s Federal Practice, where it is said, 
at page 745: 

The writ should contain a concise description of the particular acts or things in 
respect to which the defendant is enjoined, and should conform to the directions of 
the order granting the injunction. * * * The defendants ought to be informed, 
as accurately as the case permits, what they are forbidden to do. It seems that a 
writ is insufficient which designates the acts sought to be enjoined by a reference to 
the bill, without describing them. 


6 


LIMITING FEDERAL INJUNCTION'S. 


In support of Mr. Foster I wall cite Swift & Co. v. United States 
(196 U. S., 376), where it was said: 

On the other hand, we equally are bound by the first principles of justice not to 
sanction a decree so vague as to put the whole conduct of the defendant’s business 
at the peril of a summons for contempt. We can not issue a general injunction against' 
all possible breaches of the law. The general words of the injunction “or by any 
other method or device, the purpose and effect of which is to restrain commerce as 
aforesaid,” should be stricken out. The defendants ought to be informed as accu¬ 
rately as the case permits what they are forbidden to do. 

That case was followed in N. Y., N. H. & H. R. R. Co. v. I. C. C. 
(200 U. S., 404), the court adding these words to what was said in the 
Swift case, here especially significant and relevant: 

To accede to the doctrine relied upon would compel us, under the guise of pro¬ 
tecting freedom of commerce, to announce a rule which would be destructive of the 
fundamental liberties of the citizen. 

I call attention to the fact that the words “or by any other method 
or device, the purpose and effect of which is to restrain commerce as 
aforesaid,” which the court condemned and ordered stricken out as a 
menace to liberty, are the very words, or equivalent words, which 
several opponents of this provision strenuously insist should be 
retained as part of the practice pursued in labor cases. In so insist¬ 
ing they confess themselves unwilling to conform to correct practice, 
as laid down by the Supreme Court, and admit that a reprenensible, 
different practice has been pursued. 

Members of the committee have been calling for some explanation 
of the purpose of this provision. Some of you may have heard of 
blanket injunctions. Whether you have or not, the labor people 
have, and I would not say that their meaning is known to them, 
because that is something past finding out. But they have learned 
from sad experience of their effect. Presently I shall exhibit to you 
some specimens of the article, some placed in the record by Mr. 
Monaghan; but first I wish to call your attention to what I would 
not call practice, but malpractice, amounting to crime. It is one 
of the most important phases of this subject, and is alone a justifica¬ 
tion for all these first three sections. I refer to the devices and 
tricks of injunction lawyers by which they wreak upon workmen on 
strike all the disastrous consequences of an injunction rightfully 
issued, but without any basis of right, justice, or law, and yet escape 
all risk and responsibility of being themselves called to account, or 
their clients incurring any liability. 

In the first place the complaint, though unusually voluminous 
and filled with irrelevant and immaterial allegations, is defective in 
material, essential specifications. Such a complaint will be pre¬ 
sented to a judge who naturally shrinks from going through and 
scrutinizing a long document. He relies in part upon the attorney’s 
representations of what he can prove and issues a restraining order 
already prepared, and that is usually a drastic, comprehensive 
injunction, often so stringent that it barely leaves the defendants 
room to breathe. He serves the order on a few of the leaders among 
those participating in the trouble and takes care that his sharp 
practice is immediately exploited in the press. Even the leaders 
can seldom understand the matter, though aided by such lawyers as 
they are able to employ. 


LIMITING FEDERAL INJUNCTIONS. 


7 


We hear about disobedience in sucb cases and about the’necessity 
of serving hundreds and thousands of men. It is all moonshine. 
There may be rare exceptions, but as a rule whether several or many 
are served, all hear of it, and all are completely demoralized and 
discouraged. No matter how just their side of the dispute, the very 
fact that a court possessing plenary and arbitrary powers has inter¬ 
fered on the other and stronger side, the side of capitalistic and 
police power, is an insuperable obstacle to winning the strike. So 
what is the use to appear and defend ? Mr. Monaghan is correct, 
at least in his statement as to the effect of a restraining order or 
injunction. 

It is true that few injunction cases involving labor disputes are 
reported. The first act of the judge, is as destructive to the strike 
as would be a volley of musketry with its incidental carnage. 

What becomes of the complaint or affidavits? It is a subject that 
some committee ought to investigate. As a rule, the complaint dis¬ 
appears immediately. The clerks are usually very accommodating 
to the attorneys for big employers of labor; besides, in some juris¬ 
dictions, the attorneys are allowed to retain the original papers. 

In the course of his argument Mr. Monaghan made some very 
broad assertions as to the hesitancy of the courts to grant injunctions 
and their careful scrutiny of applications. He gave a surprisingly 
small number as having been issued in labor disputes. Being pressed 
by the committee, he admitted that his estimate was based only on 
reported cases. He also admitted that in many cases no report was 
available. Of course not. The injunctions and restraining orders 
against strikers run into the hundreds every year. 

The second clause of section 266b says of the injunction or restrain¬ 
ing order that— 

It shall be binding only on the parties to the suit, their agents, servants, employees, 
and attorneys, or those in active concert with them and who shall by personal service 
or otherwise have received actual notice of the same. 

Notwithstanding all criticisms hurled against this provision by 
learned and ingenious counsel, I insist that it embodies the law as it 
now is according to best authorities and that to have it otherwise, 
even if courts confined themselves to rightful jurisdiction, leaves the 
way open to intolerable abuses and judicial tyranny of a character 
which will, unless corrected, soon overturn the Republic and establish 
despotism on its ruins. 

Time and again have we been referred to the Debs case as a prece¬ 
dent and basis for the opposition to this provision. I deem it worth 
while to call special attention to that case again and in this con¬ 
nection: 

It is first to be noted that the case in the lower court was not the 
case heard in the Supreme Court. The excesses and superfluities 
of the writ were not before the Supreme Court. Debs was a party 
named in the writ and had been served. No defect or excess of any 
pleading or process was there involved. It was a habeas corpus 
proceeding, and therefore necessarily turned on a question of the 
lower court’s jurisdiction. I claim that the order and writ in the 
lower court were monstrosities, but whether they were or not ie a 
question never judicially passed upon in that case. 

In addition to forbidding about everything that men could con¬ 
ceive of or imagine, the order named certain defendants, of whom 


8 


LIMITING FEDERAL INJUNCTIONS. 


Debs was one, and then commanded and enjoined “all other persons 
whatsoever.” A learned commentator, writing in the Harvard 
Law Review of the period (8 Harv. Law Rev., 228) and speaking 
dispassionately, said: 

It is difficult to see how such injunctions can stand the test of precedent and 
principle. An injunction issues in a civil suit to any party who has been complained 
of, at least, and has had notice of the motion of his adversary. To be obliged to wait 
until the injunction has been violated to determine against whom it was issued ought 
'to be enough to show that it is not an injunction at all, but in the nature of a police 
proclamation putting the community in general in peril of contempt of court if the 
proclamation be disobeyed. Courts of equity were evidently not intended to possess 
such functions and it must be regretted that Judge Grosscup, in his most commendable 
eagerness to offset the criminal inaction of Gov. Altgeld, should have been forced to 
such a legal anomaly. The power of a court to imprison for contempt of its orders or of 
the persons of its judges is an arbitrary one at best, and to stretch it as here in the 
time of disorders and almost panic in the immediate vicinity would seem to show 
that the court has been deserted by the calm judicial temper which should always 
characterize its proceedings. 

But the loose, deplorable, and reprehensible practices which this 
provision condemns and would end have been expressly condemned 
by the Supreme Court, both in its rules and decisions. Equity rule 
48 provides as follows: 

Where the parties on either side are very numerous and can not without mani¬ 
fest inconvenience and oppressive delays in the suit be all brought before it, 
the court, in its discretion, may dispense with making all of them parties and may 
proceed in the suit, having sufficient parties before it to represent all the adverse 
interests of the plaintiffs and the defendants in the suit properly before it. But in 
such cases the decree shall be without prejudice to the rights and claims of all the 
absent parties. 

Scott v. McDonald (165 U. S., 107) was a case arising under the 
South Carolina dispensary law. A writ of injunction had been ap¬ 
plied for to and issued by the circuit court. The defendants were 
certain parties named and 1 1 all other persons claiming to act as con¬ 
stables, and all sheriffs, policemen, and other officers acting or claim¬ 
ing to act under the South Carolina dispensary law.” When that in¬ 
junction came before the Supreme Court of the United States it 
laid down a rule which I claim is that laid down in the provisions of 
this bill now under consideration. The court said: 

The decree is also objectionable because it enjoins persons not parties to the suit. 
This is not a case where the defendants named represent those not named. Nor is 
there alleged any conspiracy between the parties defendant and other unknown 
parties. The acts complained of are tortious and do not grow out of any common 
action or agreement between constables and sheriffs of the State of South Carolina. 
We have, indeed, a right to presume that such officers, though not named in this suit, 
will, when advised that certain provisions of the act in question have been pronounced 
unconstitutional by the courts to which the Constitution of the United States refers 
such questions, voluntarily refrain from enforcing such provisions; but we do not think 
it comports with well-settled principles of equity procedure to include them in an 
injunction in a suit in which they were not heard or represented, or to subject them 
to penalties for contempt in disregarding such an injunction. (Fellows v. Fellows, 
4 John Chan., 25, citing Iveson v. Harris, 7 Ves., 257.) 

The decree of the court below should therefore be amended by being restricted to 
the parties named as plaintiff and defendants in the bill, and this is directed to be 
done, and it is otherwise affirmed. 

Speaking now with especial reference to labor disputes, the un¬ 
warranted comprehensiveness of restraining orders is well designed 
to defeat the rule as to parties and drag into the toils of litigation just 
the number required in order to defeat every purpose of a strike, 
whether or not those so enmeshed have done more than merely 


LIMITING FEDERAL INJUNCTIONS. 


9 


assume a negative attitude by the severance of relations and have 
patiently and steadily preserved it. It is not every lawyer even who 
would be able to analyze and draw the line between the legal dis¬ 
crepancies in such a case and take the proper steps to preserve the 
rights of unoffending persons held to account as participants in illegal 
conduct without being even mentioned by name in the complaint or 
order. Is it any wonder, then, that advantage has been taken of the 
loose and inconsiderate practice which these representative orders 
show the courts have sanctioned, and of which workingmen complain? 

I will here notice one or two terms often loosely used by the courts. 
“Combination” and “conspiracy” describe illegal associations, and 
their meanings are the same for all practicable legal purposes. “Asso¬ 
ciation” primarily denotes an entirely legal combination between 
the members. It is often said, however, by the courts, when a 
body of organized labor embarks upon an undertaking, that it is 
a combination or conspiracy, an expression signifying that the asso¬ 
ciation itself has become unlawful or criminal. In legal essence all 
illegal acts of the membership of such an association, w r hether done 
by them singly or collectively, are perpetrated beyond and outside 
its purposes and should impose no legal consequence by way of 
injunction or otherwise upon the association as such or upon its 
members as such. 

In Pickett v. Walsh (192 Mass., 572, 589) the court said: 

There is a point of practice which must be noticed. As we have said, the plaintiffs 
have undertaken to make three unincorporated labor unions parties defendant. That 
is an impossibility. There is no such entity known to the law as an unincorporated 
association, and consequently it can not be made a party defendant. 

Often has this w T elbestablished rule of law been completely over¬ 
looked or ignored in labor cases. That this principle was willfully 
and knowingly violated in all the cases in which Mr. Monaghan was 
counsel for complainants is seen by placing side by side the bills of 
complaint which he placed in the record and his admission at page 
58 of the hearings, where he said: 

We can not sue the union as a voluntary unincorporated association, because there 
is no statute upon the books of the Federal Government which permits a suit against 
a voluntary unincorporated organization as such. 

The doctrine of ultra vires should apply here as in the case of cor¬ 
porations. According to that doctrine illegal acts done by officers 
and stockholders create personal liability only and in no way bind 
the corporation. But only in rare instances have the courts given 
the labor organizations the benefit of the application of the doctrine 
and in many cases have brought into the litigation and held to ac¬ 
count the entire membership, though the vast majority had never 
previously heard of the acts done or had any intention to partici¬ 
pate in doing them. In Buck Stove & Range Co. v. American 
Federation of Labor and others the boycott was instituted and 
prosecuted by the St. Louis Labor Council, not connected in any 
legal sense with the national organization. The officers of the latter 
merely placed the complainant on an unfair list in the official maga¬ 
zine. " Not more than a few hundred, or at most a few thousand, 
persons knew T of the boycott. And yet the American Federation, as 
a voluntary association, and each of its million and a half of members 
were enjoined and rendered liable to punishment for contempt. 


10 


LIMITING FEDERAL INJUNCTIONS. 


That is therefore a wise provision of this bill which requires per¬ 
sonal notice to all parties whom it is sought to bind with orders 
granting injunctions and restraining orders. The doctrine of repre¬ 
sentation has no place here. Representation can onl} r be resorted to 
where the parties have a common property interest in a fund or 
specific property which is the subject matter of litigation. There 
can be no common interest in torts. 

In the hearings before the House committee have been placed 
from time to time various restraining orders and injunction writs. 
Altogether, if read here and inserted in the record, they would need¬ 
lessly occupy much time and space. A description of their excesses 
and omissions alone will suffice to show the necessity for this bill. 

The first instance to be noticed is Kansas & Texas Coal Co. v. Den¬ 
ney, decided in the district court for Arkansas in 1899. Here, as in 
most of such cases, no full official report of the case can be obtained 
from the published reports, but only a mere memoranda. The 
trouble and expense of procuring certified copies of the records have 
had to be resorted to in some instances. In this case the defendants 
(strikers) were ordered to be and were enjoined from— 

Congregating at or near or on the premises or the property of the Kansas & Texas 
Coal Co., in, about, or near the town of Huntington, Ark., or elsewhere, for the pur¬ 
pose of intimidating its employees or preventing said employees from rendering service 
to the Kansas & Texas Coal Co., from inducing or coercing, by threats, intimidation, 
force, or violence, any of said employees to leave the employment of the said Kansas 
& Texas Coal Co., or from in any manner interferring with or molesting any person or 
persons who may be employed or seek employment by and of the Kansas & Texas 
Coal Co. in the operation of its coal mines at or near said town of Huntington, or 
elsewhere. 

It will be observed that a defendant in that suit would render him¬ 
self liable to punishment for contempt if he met a man seeking 
employment in a foreign country and persuaded him not to enter its 
service. 

In the case of Adams v. Typographical Union, in the Supreme 
Court of the District of Columbia, no mention was made of the filing 
of any complaint or of any reason whatever why the parties were 
restrained. Striking through the Typographical Union, all its mem¬ 
bers were dragged in; those who had and those who had not done 
the forbidden acts were placed on the same footing of condemnation. 
The union, a mere word sign in a legal sense, was impleaded as a de¬ 
fendant. We find in the order this broad, almost limitless command 
and prohibition: 

from interfering with any of the complainants in the conduct of their business for the 
purpose of preventing them from conducting the same in their own lawful way. 

Also this: 

Such injunction to remain in force during the pendency of this proceeding, or until 
the further order of the court. 

This was not a restraining order, but an injunction issued at and 
upon filing the complaint. There is not a word in the complaint in 
the case about loss or financial detriment to result from the acts of 
the defendants. It is also observable that the order contained not a 
word to show why it was issued, not even a mention of the filing of a 
complaint. It gave the parties no day in court for the purpose of 
getting rid of it, nor was any other relief prayed, othrer than the ad- 


LIMITING FEDERAL INJUNCTIONS. 


11 


vantage to accrue to complainants by the issuance of the injunction. 
There have been many such orders and injunctions issued, in the first 
instance, here in the District. 

In the Buck’s Stove and Range case the order was so long and 
involved that a busy man would almost prefer paying a fine to hav¬ 
ing to read it. Among other matters were these words: 

And from interfering in any manner with the sale of the product of the complain¬ 
ant’s factory or business by defendants, or by any other person, firm, or corporation. 

Now, if one of the million and a half persons dragged in by using 
the associate name or anyone else had a stove or range to sell, he was 
forbidden to tell a prospective purchaser that it was a better article 
than that offered by the complainant, much less could he tell him 
that complainant was unfair to labor. They were forbidden— 

from declaring or threatening any boycott against the complainant or its business or 
the product of its factory. 

Such a clause is clearly forbidden by the Supreme Court in Swift 
& Co. v. U. S. and in the Chesapeake Coal case, which I have here¬ 
tofore cited. 

But if the goods were of inferior quality the defendants could not 
mention that fact to their friends or relations; neither the American 
Federation of Labor nor any of its members could declare a primary 
boycott against the complainant for any cause. I note that the com¬ 
plaint was projected on the theory of a secondary boycott, and toward 
the close we have in the restraining order this sweeping overlapping 
clause: 

And from in any manner whatsoever impeding, obstructing, interfering with, or 
restraining the complainant’s business, trade, or commerce. 

This also was the excess which the court in the Swift and the Chesa¬ 
peake Coal cases condemned as dangerous to personal liberty. 

I will not go into the details of the Alaska case, since we are not 
much surprised at anything happening there. But the order had 
all the usual excesses, including the usual catchall clause running to 
the end of time and covering all possible activities of the defendants. 
It also assumed to drag in all the members of the union, wherever 
they might be or however circumstanced, by the simple expedient 
of impleading the union as a defendant. 

In the Massachusetts case it will be noted that the union was im¬ 
pleaded according to the usual bad practice; and with the Supreme 
Court’s decision in Pickett v. Walsh staring them in the face, too. 
This order enjoins them— 

To desist and refrain from interfering with the business of the complainants, or any 
of them, by the use of threats, force, or intimidation, with anyone seeking employ- 
'ment with any of the complainants or their agents, or by the use of promises to pay 
board, etc. 

The order here fails to state that any complaint had been filed, but 
“ whereas it has been represented unto us by the complainants,” 
naming them, “that the said complainants have exhibited a bill of 
complaint,” etc. No complaint in such a case, under any correct 
system of pleading, could possibly have shown a cause of action in 
more than on v e complainant, and yet here were a dozen joined, no 
doubt with a view to overawing the defendants into submission. 


12 


LIMITING FEDERAL INJUNCTIONS. 


The order in the West Virginia case (Hitchman C. & C. Co. v. 
Mitchell et al.) possesses the vice of not containing the name of 
either complainant or defendant. It is more in the form of a procla¬ 
mation by a military commander or provisional governor of a con¬ 
quered province in war times than anything I can think of. Under 
that order it would have been dangerous for any member of the 
union to have made any statement or representation whatever about 
the complainant or complainant’s business to anyone seeking 
employment with the complainant, even if the person seeking 
employment had asked for information. It was what might be 
termed a roving injunction, calculated to catch and bind anyone upon 
whom it might be served or to whose attention it might be called. 

I will not attempt to make extracts from it. It is all so bad that 
I would not know where to begin or end. It was issued by United 
States Judge Dayton and is attested by the clerk of his court, though 
not signed by the judge. That thing was entitled and styled a 
restraining order but had all the terms and legal effect to be found 
in any permanent injunction. Its drastic, far-reaching, and strin¬ 
gent prohibitions were introduced with the words “It is therefore 
adjudged, -ordered, and decreed by the court,” etc. There is not in 
it a line or word to inform the reader as to the offenses or wrongs 
charged against them. There was no notice or order or opportunity 
to show cause why the order should not stand until the day set for 
final hearing, nor any way to get rid of it upon any ground until the 
end of a protracted and expensive litigation. And in order to make 
the destruction of the rights of the defendants all the more complete 
and certain, the hearing was set 2 months and 21 days after the date 
of its issuance. 

Before discussing in detail the court records produced by Mr. 
Monaghan, attorney for the founders’ association, I will call attention 
to the showing of the records produced by him with reference to the 
practice which has characterized the conduct of such cases. In the 
first place we note that each and every attorney for an industrial 
corporation denies emphatically that any court has in any instance 
abused its power or exceeded its jurisdiction, and has asserted, 
apparently with entire candor, that the most that can be imputed 
to the judges is an occasional error or irregularity. 

Mr. Monaghan admitted that some injunctions and restraining 
orders had issued of which he would be unableTo obtain any data 
or record. That sounds a little strange to those familiar with the 
essentials of proper and regular court procedure. But those, at any 
rate, who know the reckless and oppressive uses of injunctions in 
labor disputes are not surprised. It often happens that they get a % 
drastic order or injunction, and then, after it has done its deadly* 
work, it disappears. 

Mr. Monaghan thought he could, at any rate, produce a certain 
number of records, and in response to the urgent request of the com¬ 
mittee, promised to produce 34 at least. He produced and placed 
in the record just 3 complaints and restraining orders and injunc¬ 
tions to the number of 15. It is fair to asume that he did not dis¬ 
criminate against his clients or himself in making the selections. 
Although those he was unable to locate and produce may be worse than 
those he has placed in the record, I do not care to see them. These 
are bad enough. Those produced bear internal evidence of having 


LIMITING FEDEBAL INJUNCTIONS. 


13 


been prepared by competent and painstaking lawyers in Cincinnati 
seeking to make the best possible showing with such materials in the 
way of facts as were available. And yet how utterly lacking in 
essential allegations as a basis for the exercise of equitable jurisdic¬ 
tion through the extraordinary strong-arm process of injunction. 

First, we have the complaint in the Greenwald Co. case, upon 
which an injunction was granted by a judge of the superior court at 
Cincinnati. It recites, of course, that the complainant has large cap¬ 
ital, large business, and employs a large number of men, allegations 
which are always deemed important by the counsel who prepare and 
judges who issue these writs. It impleads three labor unions as 
defendants, and through that contrivance drags in their members to 
the number of hundreds, perhaps thousands, as parties to a complaint 
charging criminal conspiracy, most of whom must have resided at a 
distance and have been utterly innocent of knowledge of the acts 
charged, or even of the situation at the scene of the dispute. The 
nearest approach to a charge of trespass, hence the only threatened 
injury to a property right, found in the complaint is that the defend¬ 
ants selected and detailed “ large numbers of persons called pickets 
to constantly watch and beset the approach to plaintiff’s foundry,” 
without stating whether the congregating was in the street or on 
private property with the owner’s consent; whether it was near 
the entrance, or a mile away. 

But the real grievance, as is plainly seen by reading the complaint, 
is the charge that the union was on strike “and their officers, asso¬ 
ciates, and confederates are all combining and confederating to¬ 
gether for the purpose of preventing the employees of plaintiff, who 
are desirous of working, from continuing in its employ, and also of 
preventing others from entering the employment of plaintiff.” 

It is not necessary to attempt to analyze or to point out the weak 
features of the two other complaints—one in the United States Circuit 
Court for the Eastern District of Kentucky and the other in the 
United States Circuit Court for the Southern District of Ohio. They 
are open to the same criticism, not differing in essentials from that 
just noticed. Nor is it necessary to discuss orders or injunctions 
issued on the complaints further than to speak of their vagueness, 
lack of comprehensiveness, and the utter recklessness and disregard 
for justice, legal formalities, and private rights, of which they con¬ 
tain conclusive proof. 

I have also before me, as part of the House hearings, the complaint 
in Hitchman Coal & Coke Co. v. John Mitchell and others. This 
complaint is exceedingly profuse, setting forth many transactions, 
industrial conditions, and isolated acts of individuals in different 
parts of the country, but falling as far short of an injury to any 
property or property right as if the'pleader were describing the inci¬ 
dents of a political campaign and its effect on business. This com¬ 
plaint is a slight variation from the usual form in the matter of 
parties. Instead of making the half dozen large labor organizations 
parties defendants, it seeks to bring in their memberships, whether 
within the judicial district, in the Eastern or Western States, or in 
Alaska, and to subject them to the order then and there made, by 
suing their officers in a representative capacity. This is merely a 
slight variation of the abuse of process and of fraudulent and bogus 
procedure. 


14 


LIMITING FEDERAL INJUNCTIONS. 


The charges, as you would see if you examined the complaint, are 
of acts and conduct forbidden by the order on the sole ground of their 
unlawfulness. The legal mind can not conceive of such a thing as 
proceeding by representation in such a case. It is a maxim of the 
law that there can not be an agency created to violate the law, nor 
any such thing as joint recovery against or joint liability of tort 
feasors, nor can individuals be joined as parties defendant in such a 
case, unless they be shown to have conspired together as such, or to 
have acted or to be acting in concert. But you will search in vain 
through this complaint to find an allegation showing a coming to¬ 
gether in any act of illegality such as would either show concert of 
action or anything upon which to proceed against them, except the 
bare fact that those named were officers of labor organizations and 
that the vast number not designated by any name were members of 
such organizations. 

The prayer simply asked, in minute detail, for restraint and pro¬ 
hibition upon every act and proceeding conceivable or which could be 
imagined tending toward success of the unionists in their attempt to 
unionize the miners in that region and improve the deplorable con¬ 
ditions there existing, and the order followed the prayer, with a few 
extra dashes and colors. If obeyed according to its letter and spirit, 
it completely stilled the tongues and paralyzed every activity of the 
defendants and of their associates and sympathizers. No one reading 
the record can fail to see that neither the corpus not the possession of 
property was endangered or threatened, and that the sole purpose of 
the proceeding was to exile from the district all not willing to renounce 
their union connections and peacefully and submissively accept 
employment with the company on its own terms and conditions. 

Such complaints and orders have common phases, features, and 
purposes. The injury to property is seldom the thing sought to be 
provided against, nor is the protection of property or property rights 
the object in view. Organized strikers always respect property rights. 
They seldom even disturb peaceful possession. The purpose of these 
suits is the unfair use of a powerful weapon against labor’s side in these 
legitimate trade conflicts. 

Rule 86 of the Supreme Court, placed in the Senate hearings at page 
68, contains nothing in conflict with the provisions of this section, and 
the two Supreme Court decisions, which I have cited, may be treated 
as a proper construction of the rule. 

IRREGULARITIES IN PARTIES DEFENDANT. 

I wish now to point out in a more general way than heretofore the 
evils which have resulted and are likely to continue to result in the 
matter of parties defendants. Men have been haled before courts 
and fined and imprisoned for acts which, though within the terms of 
an injunction, were not necessarily connected with the controversy 
between the parties. 

It is obvious that in such a case the judge assumes jurisdiction to 
try the party without indictment, information, or jury, himself the 
sole judge of the party’s guilt, and his will, sometimes his prejudice 
or passion, the measure of punishment. It is also clear that such a 
practice might be so extended that jury trials and the usual formalities 
m criminal cases, always deemed essential to the preservation of 


LIMITING FEDERAL INJUNCTIONS. 


15 


freedom, might be entirety eliminated, especially in times of strife 
and excitement, and each judge of a court of equitable powers become 
an absolute sovereign within his domain. 

Much needless fear is exhibited by Mr. Hines, counsel for certain 
railroads, because of the alleged difficulties of obtaining the names of 
those who are to be enjoined and of procuring service upon them 
where a railway strike occurs. His information with respect to the 
mode of living of railway employees and their residential status 
appears to be more limited than that of the average citizen having 
no connection with railroad business. 

He grossly exaggerates the difficulties and inconveniences of reach¬ 
ing and serving those whom it is found or thought necessary to serve 
in the issuance of an injunction or restraining order. The facts, as 
any railway employee, except perhaps Mr. Hines knows, are that the 
nature of the employment is such that permanency of residence is 
absolutely necessary in the case of any employee whose employment 
is not merely temporary and free from personal responsibility. 
Moreover, there can never be the slightest difficulty in getting their 
names and addresses. It would be shown by the pay rolls. Nor 
is there anything in the assertion that the operations of a railway 
strike extend over an extensive territory. Such is seldom the case; 
but even where that condition exists, the inconvenience of getting 
service is negligible. With respect to such acts of vandalism as 
damaging engines and boilers and separating cards attached to 
freight cars, no injunction could anticipate them, no matter how 
completely or promptly served. 

Passing on, I wish to say to the committee that I have thus far 
spoken somewhat of legitimate and proper resorts to this jurisdiction 
and somewhat of irregularities. But when we have created Federal 
courts, and one of the judges appointed to preside in them, in viola¬ 
tion of the rights of the parties, because of a wrong sense of social 
duty, because of the violation of the fundamental principles and dis¬ 
tinctions well settled as a basis of the jurisdiction between property 
and personal rights, issues an injunction to protect personal rights, 
then you have started on the road to a complete disintegration of 
society and the overthrow of our institutions; because a judge without 
limitations and with a wrong view of social duty, a wrong view of the 
fundamental principles of law, is simply a sovereign. His power is 
more dangerous than that of any unscrupulous monarch on the face 
of the earth, and such a judge can not be found in any country outside 
of the United States. 

It is not necessary for me to so characterize any particular judge, 
or to say that any particular judge deserves to be so characterized. 
I speak of the bias, the practice, and the tendency. 

Counsel for the opposition know full well the harm of this usurpa¬ 
tion. There is no definition in this bill of property or property rights, 
but they have made that subject the beginning and ending of every 
argument. It seems they are trying to erect a bulwark here of argu¬ 
ment so as to have the Whole question prejudged, for well do they 
know that so important and vital a question must be settled sooner 
or later. 

Senator Nelson. Is it your idea, dir. Spelling, that it is only prop¬ 
erty or property rights, as 'distinguished from personal rights, that 
are entitled to protection by injunction in any case? 


16 


LIMITING FEDERAL INJUNCTIONS. 


Mr. Spelling. It is not only my idea, but my settled conviction. 
If there is a,ny proposition in the law upon which I can take my stand 
and feel I am on sure ground, it is that; and I am not lacking in 
authority. It was so well settled centuries ago that the courts ceased 
to refer to it. There are plenty of English authorities, but the gentle¬ 
men in opposition do not bring them forward here. There are also 
plenty of American authorities. 

There was a long period in which there was no departure from the 
rule that equitable jurisdiction was limited to property rights, and in 
one case—yes, in two or three cases—in Kidd v. Horry (28 Fed. Rep., 
774), by Mr. Justice Bradley, and in the National Protective Associa¬ 
tion v. Cumming (170 N. Y., 315), by Mr. Justice Parker, of the New 
York Court of Appeals, and in other cases, the way some of the courts 
gotwrong on that proposition was pointed out. I will give a quotation 
from the case of Kidd v. Horry. 

It will be found upon close scrutiny of the cases that in many of the 
State cases where injunctions were issued in labor cases the juris¬ 
diction was acquired under statutes expressly conferring the juris¬ 
diction, and that they found sanction in the decisions of the English 
courts, which was likewise conferred by statute. And the Federal 
judges in, I dare say, the most of the cases overlooked this fact and 
based their decisions on precedents, which, if thejr had been closely 
scrutinized, would have been found not authoritative. 

The English statute, after which some of the State statutes are 
patterned, reads in part as follows: 

In all breaches of contract or other injury where the party injured is entitled to 
maintain and has brought an action he may claim a writ of injunction against the 
repetition or continuance of such breach of contract or injury, etc. 

In part, Justice Bradley said (in Kidd v. Horry): 

As the high court of justice established by the judicature act of 1873 was an amalga¬ 
mation of all the courts of original jurisdiction of Westminster Hall, including the 
court of chancery, which became merely one of the divisions of the high court, it 
follows that the court of chancery became invested with the jurisdiction which was 
given to the common-law courts by the common-law procedure act of 1854, and hence 
became invested with the power to grant injunctions to prevent the continuance or 
repetition of an injury which was actionable in any court and for which an action 
was brought, although the power to grant injunction in cases of libel was resisted, in 
several instances, by very high authority, as in the case of Prudential Assurance Co. v. 
Knott (10 Ch. App., 142), by Lord Chancellor Cairns and Lord Justice James, and in 
that of Beddow v. Beddow (9 Ch. Div., 89), by Sir George Jessel. The practice of 
issuing such injunctions, however, finally prevailed. 

This statute law of Great Britain is sufficient to account for the English cases relied 
on by the complainant and is undoubtedly the basis on which they really stand. 

The error in the first of these decisions occurred in the same way 
that most erroneous decisions are given—that is, by overlooking 
fundamental principle and failing to reexamine the ancientand well- 
established boundaries of the jurisdiction. If we go back to the 
period of the struggles between the law and chancery courts, we find 
the limitation of equity in injunction cases to property and property 
rights often referred to and discussed. 

Subsequently it was so well understood that it was deemed neces¬ 
sary to only occasionally refer to it. Bulwarks of erroneous deci¬ 
sions have been erected on other subjects to be subsequently demol¬ 
ished. Some isolated erroneous decision was tamely and blindly 
followed as a precedent without investigation as to whether it was 


LIMITING FEDERAL INJUNCTIONS. 


17 


sustained by principle or not, the supposed exigency or hardship of 
a case before the court being elaborated and the precedent being 
accepted as binding, or, if not binding, at least strongly persuasive, 

If in the course of what I say here I appear to go outside the real 
issue, this is my answer, that by showing hereafter that the courts 
possess no jurisdiction to enjoin any other injuries than those threat¬ 
ened to property, such showing has been made necessary by the 
course in argument of the opposition, and questions propounded by 
members of the committee. Such showing is not a case of proving 
too much, but a case in which the greater includes the less. 

It can not be doubted that some of the wrongs to labor by excesses 
of jurisdiction are due to willful perversion of judicial authority, but 
it is evident that most of them are attributable to a false view of 
social duty. 

The attitude of the courts of whose conduct complaints have been 
made has all the dangers and vices of the most obnoxious paternalism. 
Such courts have accepted the abstract right to do or to continue 
business, which because of its universality is clearly seen to be merely 
personal, as a property right, vested in one class to the exclusion of 
others. Hence, in protecting it by injunction, in excess of jurisdiction 
they are not exercising a judicial function at all, but enacting destruc¬ 
tive legislation for the benefit of one class and directing it against 
another. And this is a complete answer to the objection, so often 
repeated here in argument, that this bill proposes legislation in the 
interest of a class. 

The right asserted by the interests here arrayed in opposition to the 
bill is not merely that of doing business, but of continuing business 
under all conditions and circumstances, exclusive of the rights of 
others, and though the exercise of it may mean the subordination of 
all other rights. Take for illustration the case of Buck’s Stove & 
Range Co. against the American Federation of Labor and others. 

The evidence in that case showed strong provocation for the hos¬ 
tility on the part of organized labor toward the plaintiff. There 
was not only a dispute of long standing concerning the hours of 
service in the works, but plaintiff’s president was at the head of the 
national organization whose avowed purpose was to oppose nearly 
all that union labor stands for, and that he held official positions in 
other organizatoins of employers in his own line of production whose 
by-laws provided for various forms, not only of resistance, but of 
aggressive action hostile to the unions. Under the circumstances, 
the action taken by the labor organizations against the plaintiff 
might have been fairly considered a legitimate battle of trade, with 
which a court of equity should not have interfered. The feature 
of that case which is pertinent here is the viewpoint of the court 
which granted an injunction against the defendants. 

Among the objects which the president and representative of the 
plaintiff in the case proposed to accomplish in the labor field was the 
maintenance of the “open shop” of which his company’s plant was 
an examplar. 

In dealing with its customers, that company insisted upon, and had 
succeeded in establishing the “closed shop”; that is to say, it made 
a contract with just one dealer and no more in each town or city in 
the country, and bound the customer to deal in its goods exclusively. 

S. Doc. 944, 62-2-2 


18 


LIMITING FEDERAL INJUNCTIONS. 


And it was this right for which it sought and obtained the court’s 
protection. The court saw nothing wrong in the exclusion by con¬ 
tract or combination between it and a 'dealer in each community of 
all competition, and the acquisition of the power to compel working¬ 
men and all others to pay its prices or go without stoves and ranges. 
But when the union men, to whom that company denied the right of 
establishing fair and reasonable hours, refused to patronize it, and 
asserted the right of free speech and freedom of the press in calling 
attention to its unfairness, the court concluded that was not per¬ 
missible, and that it should be prevented, even if to prevent it re¬ 
quired the exertion of all the powers of the court. 

The plaintiff in that case was, in all other respects, without protec¬ 
tion from external forces in competitive enterprises. Other manu¬ 
facturers to the number of more than 60 were in the market, each 
competing, at least with respect to the volume of trade, through the 
exclusive contract plan probably and otherwise, each seeking to 
establish a ‘‘closed shop” for itself in each town. But they were all 
members of the Stove Founders’ National Defense Association, which 
exhibits strong hostility to organized labor in its by-laws. Here 
they stood united; but all the members were otherwise in competi¬ 
tion, each with the other. The courts afford no remedy against this 
competition, and we consistently maintain that they should afford 
none. And yet the court forbade by injunction labor from resorting 
to effective means of competition for a fair division of the joint 
product of capital and labor. 

The agents of each of the sixty-odd manufacturers were free to 
make whatever representations they pleased, truthful or untruthful, 
about plaintiff’s goods, and thus to boycott it, if you please, to the fullest 
extent, and thus narrow its market and destroy its business, and to 
do this from purely selfish or vindictive motives. Against all this 
the plaintiff had never thought of seeking an injunction, and if one 
had been sought the courts would have treated the application as an 
absurdity. 

But when union labor, seeking the establishment of better condi¬ 
tions for its members and acting in its own interest in pursuit of its 
legitimate objects, laid down a fair condition upon which it would 
patronize the plaintiff and declared that until the condition was 
accepted it would withhold its patronage, its entire membership was 
enjoined from maintaining even this negative attitude toward the 
plaintiff. In other words, only one thing was deemed important in 
that case, only one consideration seems to have moved the court, and 
that was the successful continuance of the plaintiff in business, the 
preservation of the market for it, at all events, regardless of the inter¬ 
ests and opinions of the members of the unions, who were the prin¬ 
cipal retail purchasers of its product, as to whether it was entitled to 
a continuance of their favor. 

And that case is fairly illustrative of many others. 

JUDICIAL GUARANTIES AGAINST HAZARDS OF BUSINESS. 

The courts, supposedly the representatives of the Government and 
handmaids of public justice, are thus guaranteeing to a certain class 
immunity against the ordinary vicissitudes and hazards of business. 
And they are doing this in a country of supposed equals, and in order 


LIMITING FEDERAL INJUNCTIONS. 


19 


to do it they are robbing hundreds and thousands of men of their 
liberties. They are meantime establishing a preferred class, a busi¬ 
ness despotism, and exempting the membership of that class from 
some of the difficulties and opposing forces which they would have to 
encounter if recognition were given to the principle of equality before 
the law and impartiality in the administration of justice. 

Employing capital is thus exempted, and labor correspondingly 
discriminated against. It appears that some of the courts have 
unconsciously imbibed the spirit of commercialism, and when led by 
that spirit are no longer able to attach importance to the simple 
ordinary rights of the citizen. Such courts act as if they considered 
it the chief purpose of government to promote and encourage the 
accumulation of wealth in the hands of those in possession of the 
machinery of production and trade. In the presence of that purpose 
all conflicting interests must yield. 

The interests and personal rights of hundreds and thousands must 
give way whenever the conflict in court happens to come between the 
interests of what are designated as “business men” and those of 
“wage earners.” The failure of a business man, or even an interrup¬ 
tion of his operations, is considered a misfortune of direst import as 
compared to the paralysis of the arms and tongues of any number of 
men having smaller interests, though those interests be equally dear, 
or even vital, to the possessors. 

Gustavus Myers, in the preface to his remarkable history of the 
Supreme Court of the United States, says'. 

Instance after instance occurs where justices, at the end of long service on the bench, 
have died virtually penniless or possessed of the most scantily moderate degree of 
means. Yet many of those very justices were the same who by their decisions gave 
to capitalists vast resources or powers translatable into immense wealth. The influence 
so consistently operating upon the minds and acts of the incumbents were not venal, 
but class influences, and were all the more effective for the very reason that the 
justices in question were not open to pecuniarily dishonest practices. 

From training, association, interest, and prejudice, all absorbed in the radius of per¬ 
meating class environment, a fixed state of mind results. Upon conditions that the 
ruling class finds profitable to its aims and advantageous to its power are built codes 
of morality as well as of law, which codes are but reflections and agencies of those all- 
potent class interests. 

In the case of men whose minds are already permanently molded to such purposes 
and whose character and station forbid the use of illicit means immeasurable subserv¬ 
ience can be obtained which crude and vulgar money bribery would hopelessly fail 
to accomplish. Under these circumstances a great succession of privileges and powers 
are given gratuitously, and class corruption appears as honest conviction, because of 
the absence of personal temptations and benefits on the part of the justices. In this 
deceptive and insidious guise supreme judicial acts go forth to claim the respect and 
submission of the working class against whom the decisions are applied. 

It would be useless to attempt hiding the social and economic strug¬ 
gle out of which this issue has grown. No one who has given thought 
to the subject can doubt that among many causes for the high cost 
of living and the consequently relative low wage rate for labor is 
overcapitalization by corporations. The payment of dividends on 
stocks which often represent no investment or very little compels 
them to force the cost of living up at one end and the wages of their 
employees down at the other. Thus they exploit both the consumer 
and the wage earner, oftener than otherwise represented in the same 
person. In order to pay these dividends they totally ignore the 
claims of humanity, resort to speeding up, long hours, and other 
forms of downright cruelty. 


20 


LIMITING FEDERAL INJUNCTIONS. 


To such extremes would they go, were it not for such resistance as 
organizations of labor can interpose, and were we to leave in their 
hands the instrumentality of injunctive processes as now adminis¬ 
tered, that they would ( soon reduce labor in this country to a worse 
plight than in any nation of the world; worse even than that of Rus¬ 
sian exiles in the coal mines of Siberia. 

Of course, writs of injunction are not recklessly and inconsiderately 
granted by all courts, but these large employing corporations, such as 
constitute membership in the associations represented by Mr. Hines, 
Mr. Dillard, Mr. Davenport, Mr. Emery, Mr. Monaghan, Mr. Herrod, 
Mr. Drew, and others, can always find a judge who fails to properly 
discriminate between a good complaint and a bad one, a fair order 
and one that is too drastic and too vague. 

Here I will insert some figures furnished by Roger W. Babson, a 
celebrated statistician. These figures were obtained by him from 
the returns of corporations under the corporation tax law of 1909, 
and are therefore official. 


National corporation tax returns. 



1910 

1911 

Increase. 

Capitalization. 

$52,371,026,752 
$31,333,952,096 
$3,125,480,000 
262,490 

$57,886,430,519 

$30,715,336,008 

$3,360,250,642 

270,202 

$5,514,803,767 

1 $618,616,688 
$234,779,642 
7,712 

Bonds and debt. 

Dividends. * . 

Number of corporations. 



1 Decrease. 


Of course, you will understand that these are returns only from 
corporations having net incomes of $5,000 and over, and that some 
classes of very large corporations are exempted from the tax and are, 
therefore, also omitted. 

Now, by their own showing in the record of the Senate hearings, 
the gentlemen I have named represent a large number of these corpo¬ 
rations, which, with others not represented, but directly interested, 
employ the labor of this country. These are some of the corporations 
which realize in profits and pay to their stockholders in dividends 
over three and a quarter billions of dollars a year, taken back out of 
the wages they pay, and from moneys otherwise earned by the 
people of this country. Last year their capitalization increased five 
and one-half billions of dollars and their profits, represented in divi¬ 
dends, increased over $234,000,000. 

Such are the opponents of this bill. Such are the institutions that 
object to loosening even one of the fetters they have placed upon the 
limbs of labor, fetters which are held through the constant menace 
of writs of injunction and the fear of jail sentences. 












LIMITING FEDERAL INJUNCTIONS. 


21 


I wish to present some further statistics on this subject. These 
figures, which I now present, represent the operations of steam rail¬ 
roads engaged in interstate commerce. 



Total revenue. 

Total outgo. 

Net revenue. 

Ratio 

operating 

expenses 

to 

operating 

revenue. 

Percent¬ 
age net 
revenue. 

1908. 

$2,424,640,637 
2,393,805,989 
2,787,266,136 

$1,695,101,878 
1,669,547,876 
1,847,189,773 

$729,538,758 

730,235,381 

940,076,363 

Per cent. 
69.91 
69.75 
66.27 

30.09 

30.25 

33.73 

1909. 

1910. 



It is also eminently proper on this occasion to call attention to a 
few matters of relevant history. At the close of the Civil War so 
large a proportion of transportation was by water, and railroad mile¬ 
age and investment were relatively so small that the latter was not 
a matter of serious concern in any quarter as a political or financial 
power. The lines were short and they were operated merely as feed¬ 
ers of transportation by water. Railroad bond issues outstanding 
did not exceed $400,000,000. Now it is claimed, or rather admitted, 
by the highest railway authorities that altogether not more than 
$8,000,000,000 of cash capital has been invested to date. And yet 
they claim that the $18,000,000,000 of stocks and bonds outstanding 
are not in excess of the value of the railroad properties. In other 
words, that, considering present values, there is no overcapitalization. 
Accepting all these claims and admissions at face value what do they 
prove ? They prove that each investment of $8 has resulted in a net 
increase in capitalization of $10. Eliminating from the calculation 
the small beginning that had been made, starting with 1866 and 
assuming the entire $8,000,000,000 as an investment made at that 
date, a net increase is shown of 125 per cent in 44 years. 

• But inasmuch as the aggregate of original investment has increased 
much faster during the last than during the first 22 years of the period, 
it is at least fair to treat the investment of $8,000,000,000 as one made 
22 years prior to 1910. The showing then is of an average annual net 
profit from investments in railroad properties of a fraction over 5.77 
per cent, which is found by dividing 125 by 22. Now, with one- 
seventh of the Nation’s capital, all in the hands of one small class of 
business men, withdrawing from all others 5.77 per cent of net profits 
as against a much smaller percentage withdrawn from the rest, 
estimated at 3 per cent, it is not difficult to see the end of prosperity 
in all lines of enterprise other than that of transportation by rail. It 
is clear that if some peaceable and lawful means be not found to end 
this grossly unjust disparity the end will be complete financial 
despotism on the one hand and abject dependence on the other. 

Now, that 5.77 per cent is practically guaranteed as a fixed income 
on $18,000,000,000. But the interest paid on railroad bonds is much 
less than 5 per cent, and runs as low as 3 per cent. The Interstate 
Commerce Commission in 1904 made a report showing that the 
average dividend rate on railroad stocks was then 5£ per cent. 

The commission’s statistics show that in 1908 and 1909 it was 6.43 
per cent, and as there was a great increase in net revenues in 1910, 













22 


LIMITING FEDERAL INJUNCTIONS. 


it is now over 7 per cent. The bonded indebtedness represents almost 
the entire investment and is less than one-half the capitalization, 
so that 7 per cent dividends is really 14 per cent on the actual invest¬ 
ment, assuming, though contrary to the fact, that the presept owners 
of the railroads made the investment, or any part of it. 

But this does not tell the whole story. At least one-half the 
operating revenue goes to extensions and improvements, which, 
when made, belong to the holders of the stock, who own the railroads. 

I think that instead of trying to hold down their employees to low 
wages, with the menace of usurped injunctive powers of the courts, 
it would be fairer and cheaper, in the long run, to increase wages and 
shorten the hours of toil. 

There is another phase of this matter, however, to which I am 
strongly tempted to call your attention. How long can the people 
of this country stand these vastly disproportionate returns to class 
capital ? It would relieve the situation somewhat if they gave their 
employees shorter hours and better wages. Some of the stupendous 
exactions from business and industry would thus find its way back 
to the people, who pay freights and fares, instead of creating multi¬ 
millionaires or being squandered in foreign countries and in wasteful 
luxuries at home. 

Mr. Hines went into the apparently irrelevant matter of wage in¬ 
creases by the railroads. But, in spite of nominal increases, the net 
earnings of the railroads increased in 1910, when most of the wage 
increase took effect, over the net earnings of 1909 by over $110,000,000. 

I have inserted the foregoing statistics and commented upon their 
significance because I recognize that the struggle between capital 
and labor is really competitive; an irrepressible, inevitable conflict 
between the respective forces with a just division of the joint prod¬ 
ucts of capital and labor as the issue, and that the unwarranted resort 
to the process of injunction gives to one side of that conflict a grossly 
unfair advantage. 

The courts should never interpose between these forces unless the 
facts would warrant interference in the absence of a dispute. And in 
other trade conflicts they never do interpose. 

In Hopkins v. Oxley Stave Co. (83 Fed. R., 912) Judge Caldwell 
said: 

While laborers, by the application to them of the doctrine we are considering, are 
reduced to individual action, it is not so with the forces arrayed against them. A cor¬ 
poration is an association of individuals for combined action; trusts and corporations 
combined together for the very purpose of collective action and boycotting; and 
capital, which is the product of labor, is in itself a powerful collective force. Indeed, 
according to this supposed rule, every corporation and trust is an unlawful combina¬ 
tion, for while its business may be of a kind that its individual members, each acting 
for himself, might lawfully conduct, the moment they enter into a combination to 
do that same thing by their combined effort the combination becomes an unlawful 
conspiracy. But the rule is never applied. 

Corporations and trusts and other combinations of capital extend themselves right 
and left through the entire community, boycotting and inflicting irreparable damage 
upon and crushing out all small dealers and producers, stifling competition, establish¬ 
ing monopolies, reducing the wages of the laborer, raising the price of food on every 
man’s table and of the clothes on his back and of the house that shelters him, and in¬ 
flicting on the wage earners the pain and penalties of the lockout and the black list, 
and denying to them the right of association and combined action by refusing employ¬ 
ment to those who are members of labor organizations; and all these things are justified 
as a legitimate result of the evolution of industries resulting from new social and 
economic conditions, and of the right of every man to carry on his business as he sees 
fit, and of lawful competition. 


LIMITING FEDERAL INJUNCTIONS. 


23 


On the other hand, when laborers combine to maintain or raise their wages, or 
otherwise to better their condition, or to protect themselves from oppression, or to 
attempt to overcome competition with their labor or the producers of their labor in 
order that they may continue to have employment and live, their action, however 
open, peaceful, and orderly, is branded as a ‘‘conspiracy.” What is “competition” 
when done by capital is “conspiracy” when done by laborers. No amount of verbal 
dexterity can conceal or justify this glaring discrimination. If the vast aggregation 
and collective action of capital is not accompanied by corresponding organization 
and collective action of labor, capital will speedily become proprietor of the wage 
earners, as well as the recipient of the profits of their labor. This result can only be 
averted by some sort of organization that will secure the collective action of wage 
earners. This is demanded not in the interest of wage earners alone, but by the 
highest considerations of public policy. 

In Yergelalm v. Guntner (167 Mass., 92) Justice Holmes, now of 
the Supreme Court of the United States, said: 

It is plain from the slightest consideration of practical affairs, or the most super¬ 
ficial reading of the industrial history that free competition means combination, and 
that the organisation of the world, now going on so fast, means an ever-increasing 
might and scope of combination. It seems to me futile to set our faces against this 
tendency. Whether beneficial on the whole, as I think it is, or detrimental, it is 
inevitable unless the fundamental axioms of society and even the fundamental con¬ 
ditions of life are to be changed. One of the eternal conflicts out of which life is made 
is that between the effort of every man to get the most he can for his services and that 
of society, disguised under the name of “capital,” to get his services for the (least) 
possible return. Combination on the one side is potent and powerful. Combination 
on the other is a fair and equal way. * * * If it be true that the workingmen may 
combine with a view, among other things, to getting as much as they can for their 
labor, just as capital may combine with a view to getting the greatest possible return, 
it must be true that when combined they have the same liberty that combined capital 
has to support their interest by argument, persuasion, and the bestowal or refusal of 
those advantages which they otherwise lawfully control. 

I desire to read from what Lord Coleridge said in the great case of 
the Mogul Steamship Co. v. McGregor (21 Q. B. Division, 544, 1892). 
This is a case of conflict between capitalists for the control of the 
carrying trade of the ocean. The court said: 

There can be no doubt that the defendants were determined, if they could, to 
exclude the plaintiffs from this trade. Strong expressions were drawn from some of 
them in cross-examination, and the telegrams and letters showed the importance they 
attached to the matter, their resolute purpose to exclude the plaintiffs if they could, 
and to do so without any consideration for the result to the plaintiffs if they were suc¬ 
cessfully excluded. This, I think, is made out, and I think no more is made out than 
this. Is this enough? It must be remembered that all trade is, and must be, in a 
sense selfish. Trade not being infinite—nay, the trade of a particular place or district 
being possibly very limited—what one man gains another loses. In the hand-to-hand 
war of commerce, as in the conflicts of public life, whether at the bar, in Parliament, in 
medicine, in engineering—I give exmaples only—men fight on without much thought 
of others, except a desire to excel them or defeat them. Very lofty minds, like Sir 
Philip Sydney, with his cup of water, will not stoop to take advantage if they think 
another wants it more. Our age, in spite of high authority to the contrary, is not 
without its Sir Philip Sydneys; but these counsels of perfection it would be silly indeed 
to make the measure of the rough business of the.world as pursued as ordinary men of 
business. 

I have already said that the same conflict goes on between capital 
for the trade of the world, which is not infinite, goes on and is una¬ 
voidable between capitalists, whether in individual hands or in the 
hands of these mighty combinations and labor, and without organi¬ 
zation the tendency inevitably is for labor to descend, and that 
rapidly, to a condition of absolute servitude and helplessness. I say 
that, in the nature of things, and under present conditions, this 
warfare is unavoidable, and there is the same justification for organ¬ 
ized labor resorting to the legitimate and recognized methods of 


24 


LIMITING FEDERAL INJUNCTIONS. 


warfare, in its hard and unequal struggle against capital, that there 
is expressed in the foregoing extracts in the conflicts of capital 
against capital, and the learned justices have shown you what 
extraordinary lengths are held justifiable. 

And in Pickett v. Walsh (192 Mass. 572) Judge Loring, delivering 
the opinion, said: 

Further, the effect of complying with the labor union’s demand apparently will be 
the destruction of the plaintiff’s business. But the fact that the business of a plaintiff 
is destroyed by the acts of the defendants done in pursuance of their right of compe¬ 
tition is not decisive of the illegality of the acts. It was well said by Hammond, J., 
in Martell v. White (185 Mass., 255, 260), in regard to the right of a citizen to pursue 
his business without interference by a combination to destroy it: 

“Speaking generally, however, competition in business is permitted, although fre¬ 
quently disastrous to those engaged in it. It is always selfish, often sharp, and some¬ 
times deadly.” 

The application of the right of the defendant unions, who are composed of brick¬ 
layers and stonemasons, to compete with the individual plaintiffs, who can do nothing 
but pointing, as we have said, is in the case at bar disastrous to the p’ointers and hard 
on the contractors. But this is not the first. The case at bar is an instance where 
the evils which are or may be incident to competition bear very harshly on those 
interested, but in spite of such evils competition is necessary to the welfare of the 
community. 

To the same effect is Allis-Chalmers Co. v. Iron Holders’ Union 
(C. C.) (150 Fed. Rep., 155), per Sanborn, J. 

Great changes are at work in the public thought of the Nation, 
and labor is abreast of the times. 

In the report of the House committee on this bill we find this 
expression: 

The idea has been advanced and ably supported in argument by one of the propo¬ 
nents of this legislation that liberty, and more of it, is safe in the hands of the work¬ 
ingmen of the country. We are convinced of the merit and truth of that contention. 
The tendency toward freedom and liberation from legal trammels and impediments 
to progress and to a great social advance is seen in nearly all civilized nations. It is 
an unpropitious time to oppose a reform like that embodied in this bill, in view of the 
fact that the abuses of power which it seeks to terminate have been, admittedly, 
numerous and flagrant. 

As evidence that organized labor fully understand their rights, I 
read from the address of President Gompers to the last annual con¬ 
vention of the American Federation of Labor, the same having been 
unanimously adopted as the sense of the members: 

POLITICAL CHANGES AFFECTING LABOR. 

At length it has become evident to all open-minded men that important changes 
are impending in our methods of government, and especially with reference to the 
status of political parties. Voters are now demanding better reasons for their support 
of a particular candidate than his nomination by a party or his indorsement by some 
official or unofficial boss. The spirit of revolt and change is abroad in the land, and 
the spirit of liberty which first inspired the Revolutionary leaders in 1776 has again 
entered the hearts of the American people. The people who form the rank and file 
of political parties are more progressive than their leaders. They will no longer 
submit to the rule of evasion and false pretense found in platforms, presidential mes¬ 
sages, and public addresses. They demand straight talk and open, honorable methods. 

I hope to find henceforth that the millions of intelligent men of labor, having 
passed beyond the influence of campaign buncombe, have come to understand that 
the welfare of the people and the promotion of the cause of labor are more important 
than any party candidacy or empty partisan success. 

In the progress being made toward popular rule, now seen not only in our own 
country but in all nations, labor can justly claim an important if not indeed a leading 
part. In this movement international boundaries may be disregarded. The man¬ 
hood and intellect associated in the war for the rights of men, differentiated from those 


LIMITING FEDERAL INJUNCTIONS. 


25 


of wealth, privilege, and hereditary rank, belong to no particular race, class, or nation¬ 
ality. The spirit of liberty and self-assertion overleaps mountain ranges and speeds 
across the seas separating empires and continents. It can not be stayed by kings, nor 
by injunctions and jail sentences. 

True progress has never been by rapid strides, notwithstanding that a change from 
the old to a new order comes with a suddenness which is almost startling, when after 
a long period of dissension and preparation the people are ready. Labor has been 
patient and persistent, enduring many wrongs and sacrifices. There should be no 
retreat from the points of vantage it has conquered. 

Labor’s contentions of many years have at length become merged into or have 
rather coordinated with those of the progressives of all parties. The people as a 
whole, irrespective of class, condition, calling, or partisan alignment, have declared 
for freedom in fact, and not merely in name. They are taking affairs political into 
their own hands. They will no longer tolerate the sale of legislation to the highest 
bidder or the granting of franchises to the richest bribe giver. Under the coming 
regime assuredly there are to be no more court decrees entered as prepared in advance 
and ordered by the attorney for the stronger party—stronger politically or financially. 
Along with these abuses will depart the midnight injunction and the policeman’s 
ready club, at the behest of those claiming a property right in the labor of the vicinage, 
whether at work or on strike. In lieu of the political boss and his machine, we shall 
have leaderships of intelligence, pleading for public justice, with adherents propor¬ 
tioned in number to the strength of the arguments. The stuffed ballot box, the false 
count, and the perjured election return will likewise disappear. 

With these opportunities, with these stimulating inducements to free thought and 
action, the cause of public justice will be advanced in all directions. Labor, acting 
from the point of enlightened self-interest and yet with a full sense of responsibility 
respecting the just rights of all others in society, will manfully and patriotically 
meet its enlarged responsibilities. 

Under the prevailing system of cut-and-dried platforms and slated nominations, 
preceded by fake primaries, the ballot in our hands has not been, in any adequate 
sense, either a protecting shield against wrong or a means of redress. We may not for 
some time be entirely rid of the rule of parties. If they be an evil, they are such as 
are incident to all governments based on popular suffrage. I deem it unwise, or 
rather impolitic, to waste our energies now in efforts to abolish political parties. Per¬ 
haps they are institutional in all free governments. But if we can not destroy them 
we may, by more assiduous and regular exercise of our privileges and rights of citi¬ 
zenship, do much in the way of controlling them. 

Under existing conditions we must obtain various measures of legislation at the 
hands of dominant parties in legislative bodies, and if party affairs are to remain in 
the hands of corporate agents and corrupt bosses as heretofore, then our interests will 
be imperiled and the desired end retarded no matter which party has the majority. 

But political parties should, after all, be treated as means to an end. The success 
of a party should never outweigh the accomplishment in legislation or administration 
of the important purposes of labor. In casting our ballots we should ever distinguish, 
whenever possible, between our friends and our enemies, and between these should 
be no division on party lines among us. On general party issues it would be useless 
to attempt bringing about unity of action, and perhaps it is better in the long run 
that such is the case. But when we are seeking legislation from Congress on so vital 
a matter as curtailment of personal liberties, including the right of free speech and 
free press, we should be a unit in opposition to candidates who stand in the way, 
no matter how exalted the office sought by them. 

Senator Nelson. I do not like to interrupt you if it is not agreeable, 
but sometimes questions and answers clear up the situation. 

I would like to ask this question right at this point: Do you or do 
you not consider the right to carry on business or the right to work 
per se is a property right ? , 

Mr. Spelling. I do not; and that question seems now to be 
important. 

Senator Nelson. I will not interrupt you if it does not suit you. 
I do not want to interrupt you to embarrass you. I want to get my 
bearings as I go along. 

Mr. Spelling. I have allotted to me a very limited time. If I can 
accomplish one purpose in this argument and no more, I desire to 


26 


LIMITING FEDERAL INJUNCTIONS. 


accomplish that. I will endeavor at once to satisfy you on that 
point. 

I will call attention to High on Injunctions, fifth and latest edition, 
section 20b, which is a new section, and to a long list of authorities 
therein cited, old and new. He says: 

Equity has no jurisdiction to restrain the commission of crimes or to enforce moral 
obligations and the performance of moral duties; nor will it interfere for the preven¬ 
tion of an illegal act, merely because it is illegal; and in the absence of any injury to 
property rights, it will not lend its aid by injunction to restrain a violation of public 
or penal statutes, or the commission of immoral or illegal acts. 

Mr. Hines brought before you and read to you section 20; what I 
have here read is section 20b. Section 20 uses the words “ civil rights.” 
I wish I had what he read to you, but it is in the record. The context 
even of section 20 shows as clearly as daylight that the word “civil” 
was used there to distinguish civil rights—that is, the rights that are 
maintained by civil actions—from those that are enforced or vindi¬ 
cated in criminal cases, and it has no further office. A reading of 
section 20—that is, the balance of it that he did not read—clearly 
shows that that is what it means. It has no such meaning as that 
which he attributed to it. 

The gong here rang to announce a vote in the Senate. 

Senator Nelson. We will have to suspend until we go up and vote. 

Thereupon, at 2 o’clock p. m., an informal recess was taken until 
2.15 p. m., at which time the hearing proceeded as follows: 

Mr. Spelling. Speaking of the remedy by injunction, Pomeroy 
says: 

It is necessary to show irreparable injury to a substantial property right, and if such 
injury is not clearly made out relief will be refused. (Pomeroy "Eq. Juris., vol. 5, 
sec. 323.) 

What I am about to quote now is from Pomeroy’s Equity Juris¬ 
prudence, volume 5, section 324: 

As equity deals with property rights alone, an injunction will not issue to restrain 
political acts of public officers. 

Having shown by these authorities that equity protects property 
and property rights only, the next proposition is that business is not 
a property or a property right. 

As authorities upon this proposition I cite E. & A. Encyclopedia of 
Law, pages 59 and 251; Bouvier’s Law Dictionary, title ‘‘Property;” 
Black’s Law Dictionary, title “Business;” Schuback v. McDonald 
(65 L. R. A., 136); Worthingtons. Waring (157 Mass., 421). 

Legally speaking, what is property ? What is a property right ? 

I will first describe the property right. It is a right essentially 
connected with propert\q for instance, the right of possession—and I 
emphasize these words—entirely dependent upon the ownership 
legally or equitably of property. Such being the essential character¬ 
istic, there is no real difference between property and the property 
rights. Whoever owns the right owns the property, legally or 
equitably. 

In the English and American Encyclopedia of Law at page 59 we 
find this definition of property: 

Property means that dominion of indefinite right of user and disposition which one 
may lawfully exercise over particular things or subjects, and generally o the exclu- 


LIMITING FEDERAL INJUNCTIONS. 27 


sion of all others. Property is ownership, the exclusive right of any person freely to 
use and enjoy and dispose of any determinate object, whether real or personal. 

I put emphasis on the words “and dispose of.” You will see the 
reason presently. 

From Bouvier’s Law Dictionary, latest edition, I read the following 
definition of property: 

The sole and despotic dominion which one man claims and exercises over the 
external things of the world in total exclusion of the right of any other individual in 
the universe. The right to possess, use, enjoy, and dispose of a thing. 

On page 261 of the English and American Encyclopedia we find 
this definition of a property right: 

In its proper use the term “property right” applies only to the rights of the owner 
in the things possessed. 

I read that for the purpose of showing that there is really no dis¬ 
tinction in law between property and property rights. It may take 
a little consideration to see it, but that is the conclusion to which 
all must come who study this subject intelligently. 

Let us now ascertain how business is defined, and we shall see that 
it does not come within either of these definitions—I mean the defi¬ 
nition of property and the definition of property rights. 

Black’s Law Dictionary says: 

A matter or affair that engages a person’s attention and requires his care; an affair 
receiving or requiring attention; specifically, that which busies or occupies one’s 
time, attention, and labor as his chief concern; that which one does for a livelihood; 
occupation, employment; as “his business was that of a merchant;” to carry on the 
business of agriculture- 

Senator Nelson. As I understand, your position, then, is, first, that 
the right to do business, the right to work, is not in any sense a prop¬ 
erty right', and that injunction does not lie to protect anything but 
property rights. That is your position ? 

Mr. Spelling. That is the proposition; and I would like to ask a 
question, if it were exactly proper, whether any member of the com¬ 
mittee believes that equitable jurisdiction to issue an injunction is 
proper to protect a personal right ? 

Senator Nelson. Let me ask another question- 

Senator O’Gorman. I think it will be admitted that the proposi¬ 
tion of law is perhaps correct. I know, for instance, that it was 
applied in the court of appeals in New York State, where the court 
refused to enjoin the publication of a libel upon the theory that 
injunctive process could not be invoked to prevent the doing of a 
personal wrong, except in so far as it might affect a property right. 

But the second question suggested by the Senator probably more 
concerns most of us, Mr. Spelling, and that is your suggestion as to 
the right to continue a business not being a property right in your 
estimation. 

Mr. Spelling. Gentlemen, I call for a suggestion of some occupa¬ 
tion for the mind or hand which is not the mere pursuit of pleasure 
or some purely benevolent work that does not come within the term 
“doing business.” 

But let me proceed. I have something on that right here, and I 
would be glad to tell it in response to the question by Senator O’Gor¬ 
man. I have not finished reading the definition from Black’s Law 
Dictionary. 



28 


LIMITING FEDERAL INJUNCTIONS. 


Senator Nelson. May I supplement one point further? If your 
position is correct, then the right to form a labor union is in no sense 
a property right and is not under any circumstances entitled to the 
protection of law. 

Mr. Spelling. I do not say that; I do not go that far; but it is no 
more entitled to an injunction than the right to breathe. I have 
always said that, and there is no intelligent labor man in the United 
States that does not agree with me. They go further, and say the 
right to blacklist, practiced by the employers, which exactly corre¬ 
sponds to the boycott by labor, is not entitled to protection by in¬ 
junction; that is, laborers are not entitled to protection against it by 
injunction. 

Senator O’Gorman. Where those writs have been granted with 
respect to the blacklist, has it not been upon the ground that a prop¬ 
erty right was invaded ? 

Mr. Spelling. Senator O’Gorman, I know of but one case in the 
judicial history of the United States in which an injunction was 
sought by labor against the blacklist. That was in the case of Worth¬ 
ington v. Waring (157 Mass., 421), and the court refused it on the 
very ground, and made the very argument that I am making here 
to-day, only that it made it a little better. 

The right to do business! They will get out an injunction against 
a violent assault on a man who is seeking the job of a unionist. They 
base it on the allegation that their right to do business is interfered 
with by that act of the strikers. That simply means, when you come 
down to the essence of it, that they claim a property interest in that 
man who is seeking the job. 

It is the same way as to boycotting and all these acts in which 
these disastrous restraining orders and writs are issued, even if they 
are entitled to protection of the right to do business against those 
acts which we might agree are unlawful; even in that event you 
have to make the right to protection coextensive with the claim. 
You have to give them the right to protect themselves against the 
strike, because that is a more direct and a more serious interference 
with the right to do business. The courts all concede you can not 
do that. 

This case in Massachusetts (Worthington v. Wearing) is of interest 
in this connection. The views of Mr. Justice Holmes have become 
the settled law in the State of Massachusetts. In one case (Verghe- 
lan v. Guntner, 167 Mass., 92) Justice Holmes asserted this doctrine, 
and that has become the settled law in the State of Massachusetts. 
It was recognized in Pickett v. Walsh (192 Mass., 592). 

This right to do business is simply a personal right. You gentle¬ 
men are “doing business” now. You are not engaged in philan¬ 
thropy or benevolence, nor is it any mere pleasure. 

I will read a little further from Black’s Law Dictionary. I am 
reading now the definition of “business.” I am really talking about 
the right to do business. 

Following what I previously read, Black’s Law Dictionary says: 

That which is undertaken as a duty of chief importance, or is set up as a principal 
purpose or aim. For instance, “The business of my life is now to pray for you.” 
(Fletcher, Loyal Subject, IV, 1.) 

I am reading now from the definition in Black’s Law Dictionary. 
Black, Anderson, Bouvier, Century, and Webster, all the lexicog¬ 
raphers, agree in their definitions of property and business. 


LIMITING FEDEKAL INJUNCTIONS. 


29 


The right for which they seek protection by injunction is not this 
abstraction, this mere figment of the imagination we call business, 
but the right to do business, and that right is as broad and compre¬ 
hensive as humanity. That is what would make the extension of 
equitable jurisdiction to the protection of the right to do business so 
dangerous, so utterly destructive to American institutions. 

The courts have thus far discriminated against a class—that is, the 
labor class—by limiting and confining that doctrine and that practice 
to cases in dispute between employing capital and labor, and they 
have never in a single instance extended it to any litigation between 
business men or men belonging to the business class, nor between 
members of any other class. 

DO ABUSES EXIST? 

Abuses in issuing and enforcing injunctions do exist, and so serious 
have they been that two Presidents—one of whom had been himself a 
judge—were compelled, presumably by sense of duty, to send mes¬ 
sages to Congress calling attention to them and suggesting legislative 
remedies. 

Every well-informed lawyer in the country knows that such abuses 
exist, and some judges have spoken of them in condemnation. And 
yet there has not been a suggestion from one of the half dozen counsel 
appearing in opposition to this bill that Congress should amend the 
law in any particular. On the contrary, you may read each argu¬ 
ment in turn, and you will find that every single feature and provi¬ 
sion of the bill, from the general purport to the minutest detail, is 
bitterly assailed, and the same old decisions and the same old thread¬ 
bare arguments employed in one speech after another. As showing 
the attitude of the opposition, I call attention to the fact that the 
character of opposition before the House committee was just as vin¬ 
dictive, just as unyielding, just as uncompromising, just as hard¬ 
ened against reason as before this committee. At thdhearings before 
the House committee one of its members said to the gentleman 
whom I consider the leader in opposition, Mr. Davenport: 

I should like to ask you this question: In the course of an experience which has 
been more extensive than that of any other man I know, has it come to your observa¬ 
tion that the writ of injunction, in its issuance, is abused in any way at all? 

The reply was: 

Never. They are really very hard to get. 

Then he was asked : 

Is there any suggestion that it occurs to you to make for a change in the adminis¬ 
tration of the law? 

And he replied: 

No; not even the one contained in the proposition of Mr. Moon in the last Congress. 

The Moon proposition was offered in the House as a substitute 
for the bill which passed the House by a vote of 243 to 31, every 
Democratic Representative voting for it. The substitute was de¬ 
feated by a vote of 48 to 220. 

I can not, of course, quote from the presidential messages; but 
during Mr. Roosevelt's incumbency he urged legislation in mes¬ 
sages of the following dates: December 5, 1905; January 31, 1908; 


30 


LIMITING FEDERAL INJUNCTIONS. 


March 25, 1908; and December 18, 1908. President Taft included 
recommendations for such legislation in messages dated December 7, 
1909, and December 6, 1910. Over and over, in these messages, it 
was declared that abuses exist and that it was the duty of Congress 
to legislate on the subject. 

Mr. Davis of West Virginia, a member of the House Judiciary Com¬ 
mittee, summed up the principal forms in which these admitted abuses 
have appeared in a speech in the House on the Clayton bill, May 14, 
1912. 

He was answering another member of the committee who had 
asserted, as counsel have asserted here, that there have been no in¬ 
stances of judicial abuse herein. Mr. Davis said: 

I accept the challenge of the gentleman from Pennsylvania, Mr. Moon, and assert 
that if the testimony of the witnesses before the committee did not disclose them, still 
the reported cases will show at least five glaring abuses which have crept into the 
administration of this remedy. I name them: 

The issuance of injunctions without notice. 

The issuance of injunctions without bond. 

The issuance of injunctions without detail. 

The issuance of injunctions without parties. 

And in trade disputes particularly, the issuance of injunctions against certain well- 
established and indisputable rights. These are the evils which this bill seeks to cure. 

But there are other authorities upon the necessity for legislation to 
correct not only uncertainties in the practice but erroneous views of 
judges as to their powers. I quote from an authority which has been 
freely quoted by counsel in opposition. I refer to Martin’s Law of 
Labor Unions. He says in his preface: 

There is, however, a great lack of harmony in the decisions relating to trade dis¬ 
putes, and many of them, it is believed, erroneous in principle and oppressive and 
unjust to organized labor. In this category may be placed decisions which hold 
without qualification that strikes or threats or strikes to procure the discharge or pre¬ 
vent the employment of workmen are unlawful and criminal, as being unwarrantable 
interference with the business of the employer, and an invasion of the rights of the 
workmen against whom these acts are directed, denying unions the right to exercise 
disciplinary measures in accordance with their rules and by-laws, to compel insubor¬ 
dinate members to join in a lawful strike or continue on strike after going out; holding 
that all picketing is unlawful; enjoining unions at the instance of an employer against 
whom a strike is in operation from giving strike pay or using its funds in furtherance 
of picketing; requiring defendants against whom a writ of injunction, defective and 
ambiguous in its terms, has been awarded, to ascertain—or, more properly speaking, 
to attempt to ascertain—what is prohibited by reading the writ in connection with 
the bill. 

Senator Nelson. You know, Mr. Spelling, that this new party that 
is forming is criticizing both the old parties on the ground we make 
too much of property and pay no attention to persons. You are aware 
of that fact, I suppose ? 

Mr. Spelling. Yes, I am. I have no hesitancy in indorsing the 
principle, whether it is in the Progressive platform, the Republican 
platform, or the Democratic platform, though I do not commit myself 
to the denunciation of parties. I think that is a great evil and the 
danger of the times. It is not a proper function of the Government, 
to promote business prosperity, or to promote prosperity at all, 
except as an incident to guaranteeing men an equal opportunity; 
that is, protecting them from special privilege, and from those per¬ 
sons and institutions which obtain exclusive opportunities through 
legislation, and therefore get an advantage in this matter of pursuing 
prosperity, which is part of the scheme of pursuing one’s happiness. 


LIMITING FEDERAL INJUNCTIONS. 


31 


So, if anywhere I see a statement that it is a proper function of the 
Government to promote the welfare of the individuals in the com¬ 
munity as a whole, that it is the principal function of government to 
do that, I indorse it. 

I think there is such a thing as too much prosperity, unless it were 
better distributed. 

Senator O’Gorman. That would correct it—that fair distribution 
of prosperity. 

Mr. Spelling. Not an equal distribution. I would be willing, if 
enough would agree with me, to bring about a fair distribution of 
the accumulated wealth of the country, but I have no plan of my 
own, and I have not seen a practical plan for doing it thus far. 

Here is what I say: Business is of inumerable forms. It may be 
incident to the ownership or use of property, or entirely foreign to 
such use and ownership. It is the business of the naturalist to 
travel and investigate. 'Vyhat I am now doing and what the mem¬ 
bers of this committee are doing is business, just as much as what 
any employer of labor is doing or has been doing. 

All of any employing corporation’s property, including its good 
will—I expect to encounter some trouble on that last proposition 
pretty soon, but I am ready for it—all its assets is the product of 
labor; part of that labor. Part of that labor and not part of that 
property is the doing of business. 

One element of all the definitions of property is that it may be dis¬ 
posed of; that is, it is assignable. Just now I placed emphasis on 
the words of this definition, “the right to dispose of.” It must be 
assignable or it is not property. The only exception is in the case of 
what is known as a pure equity. One’s business has no quality of an 
oquity, and so that need not be considered. Hence, lacking the 
essential element of assignability, it is neither property nor a property 
right. It is an indeterminate, natural, and personal right. If a man 
die, all his property, including the good will, if any, created by exer¬ 
cising the right to labor—that is to say, by exercising the right to do 
business—is distributed to his next of kin or his devisees. But his 
business ends; it is gone forever. This applies to men of all conditions 
and classes. Within the legal definitions there is hardly a man in 
the world without a business. Even if a man be sick and bedridden, 
be has, as his chief concern—that is, his business—to get well if he can. 

The reasoning in boycott cases is the same as in strike cases. For 
the same reasons that an employer has no vested or property interest 
in his employees or in their capacity to serve him, a dealer has none 
in his customers. 

Let us take any boycott case before a court for an illustration of 
my argument. Nobody is threatening to injure the plant or other 
actual property of the plaintiff. What is left as property or as a 
property right to support the action for an injunction ? Merely that 
imaginary thing, the plaintiff’s business, his right to live, to seek 
prosperity and accumulate wealth, or to seek a job and gain a com¬ 
petence from wages. 

I now undertake to demonstrate, as a legal proposition, that 
business is a mere abstraction and is not and can not be proved or 
argued into the legal meaning of property or property right, by any 
amount of proof or argument. 


32 


LIMITING FEDERAL INJUNCTIONS. 


I have sought in the opinions of judges a good expression of my 
idea, and found it in the case of Schubach v. McDonald, a Missouri 
case, reported in 65 L. It. A., at page 136, where the court, speaking 
of the right which can be made the basis for an injunction said: 

The abstract right must assume a concrete form before it becomes property in the 
judicial sense, capable of judicial protection. 

If “ business” be not property, much less is the abstract right des¬ 
ignated as “the right to do business.” The right to do business 
clearly belongs in the class of personal rights; for instance, with one’s 
right to practice law, his right to travel. A complainant’s business 
and right to do business are as unsubstantial and purely ideal and 
personal as that of a metal polisher or foundry man to seek and obtain 
employment. 

As the question of judicial interference in disputes between labor 
and capital has never been discussed in any of the cases with any 
special reference to this point, and as judicial views, as well as the 
decisions, are in conflict, I desire to illustrate this point, and I will 
begin with a truism and a maxim. My truism is that each man is 
the equal of every other man before the law. That is a little old 
fashioned, but I believe that as a principle it still lives. 

My maxim is that “equity delighteth in equality.” Nobody can 
dispute that. 

Now, for the illustration: Here is a man; we will say his name is 
Smith. He enters the employ, as a metal polisher, of Mr. Jones, who 
is the proprietor of a stove factory. By entering such employment 
he becomes a business man as well as an employee. He is engaged 
in a business pursuit. He is not engaged in philanthropic work, but 
business. Polishing stoves is his business. In other words, he is 
exercising the right to do business. He has police protection against 

P ersonal annoyance. Would anyone be so absurd as to contend that 
e could protect by injunction his bare right to polish stoves; that is, 
his right to accept employment and perform the duties of a stove 
polisher? He receives his compensation in definite stated sums at 
stated periods. There is Mr. Jones, the proprietor, his employer. 
He stands in the place of a corporation, subsequently succeeding Mr. 
Jones in business, and the illustration holds good. Mr. Jones works 
at the same establishment but mostly with his brains. He gets his 
pay in the form of profits when there are any. His pay is uncertain 
and somewhat speculative as to its amount; but that is wholly imma¬ 
terial. As to all his tangible property, real and personal, and as to 
all his property rights, such as choses in action and incorporeal 
hereditaments, he may in a proper case be protected by injunction, 
but not, I insist, as to his personal right to do business. 

We will suppose that Mr. Jones dies and a corporation is formed to 
take over the whole plant. The corporation taies his place as pro¬ 
prietor. It of course succeeds to no greater personal right to do busi¬ 
ness than its predecessor enjoyed or than any other business man 
enjoys. Mr. Brown becomes president and continues devoting labor 
to the new business. He is as much entitled to protection to protect 
his employment as Smith, the polisher, the employee, to protect his 
job, or as the corporation to protect its busmess; that is to say, 
neither he nor the corporation has any such right whatever. 


LIMITING FEDERAL INJUNCTIONS. 33 

Senator Sutherland. I came in after you began this discussion, 
and I would like to understand just your position. Do you take the 
position that under no circumstances is the right to do business a 
property right ? 

Mr. Spelling. I do. 

Senator Sutherland. Suppose I own a piece of real estate. I 
have a right to sell that real estate. Is not that right a property 
right ? 

Mr. Spelling. Your interest in the land is a property right. 

Senator Sutherland. Is not the right to sell it a property right? 

Mr. Spelling. I might add to that by saying that that is not 
equivalent to the right to do business. 

Senator Sutherland. I am coming to that. 

Mr. Spelling. Answering your question categorically, I will say no. 

Senator Sutherland. It is not a property right ? 

Mr. Spelling. It is not. It belongs to the great category of per¬ 
sonal rights. Your right to sell the land is not property or a prop¬ 
erty right in any sense until it assumes a concrete form and you have 
made a contract to sell it. Prior thereto the right of alienation is 
wrapped up in your title. It has no separate existence as a right, 
legal or equitable. I have the general right to sell land, and that is 
all you have, notwithstanding your specific ownership or land, until 
you have actually made a contract to sell. 

Senator Sutherland. The right to retain property in my own pos¬ 
session is a property right ? 

Mr. Spelling. Certainly. 

Senator Sutherland. But the right to sell to some other person is 
not a property right ? 

Mr. Spelling. That is not a proprety right, independent of the 
individual title. It stands on the same abstract footing as my gen¬ 
eral right. To test the matter, how could you even make a case call¬ 
ing for an injunction to protect such a right? 

The Chairman. What about the right to use the property ? 

Mr. Spelling. The right of possession is a property right that goes 
with the property and the use goes with the possession. 

The Chairman. What about the right to use the property ? 

Mr. Spelling. It is an essential ingredient of the ownership of the 
property, an incident to possession. 

The Chairman. It is, then, a property right? 

Mr. Spelling. Oh, certainly, tne right of possession is. The use is 
essential incident to ownership. A man can divest himself of the right 
of possession as he can of any property right, by renting it to somebody 
else. He then has the right of ownership in the property and the 
tenant has the use in the possession, both as one; they are insepar¬ 
able. Both are entitled to protection by injunction. 

Senator O’Gorman. Mr. Spelling, I understand you to say that in 
numerous injunction suits, especially those affecting strikes, the ques¬ 
tion has not been determined by the court that the right to continue 
a man’s business is a property right. Has it not been so determined 
by the courts ? 

Mr. Spelling. The right to continue business as a property right ? 

Senator O’ Gorman. Yes. 

Mr. Spelling. Senator O’Gorman, it has been decided in case after 
case that that right to do business is entitled to protection, and it 
S. Doc. 944, 62-2-3 


34 


LIMITING FEDERAL INJUNCTIONS. 


has been given practical application time and again by State courts 
and Federal courts. 

Senator Sutherland. The courts have called it a property right, 
have they not ? 

Mr. Spelling. I think some one or two of the courts have in so 
many words. 

Senator Sutherland. In the Adair case did not Justice Harlan 
call it a property right ? 

Mr. Spelling. 1 he Adair case has been brought up here by every 
attorney in opposition without an exception, and they take some 
words of Justice Harlan in the grand rhetorical discourse in that case 
in which he said this right of the railroad company to make contracts 
is a property right as well as a personal right. He said that. 

But let me say before I revert to that Adair case it has been my 
policy in all the arguments I have been making before committees of 
Congress for years and years on this subject to treat these decisions 
that have been paraded before you in long array as a class. I do not 
discuss them except in a class. 

Coming back now to the Adair case, Justice Harlan did say that 
and used that expression just as I have given it to you. But let me 
call your attention to something else he said in the same case. 

He said that laboring men have the right to sell their labor, and 
the employer has the right to buy their labor, just as if it was some¬ 
thing that was canned up or on tap awaiting the first purchaser to 
deliver it to, whereas a contract of employment merely creates a 
personal relation. 

Of course, if labor could be put in cold storage or tied up in pack¬ 
ages and sold to the first man that came along who wanted it, then 
Justice Harlan is right, because a contract to sell goods is a property 
right, to be protected by injunction. But without a break from that 
expression which I have just used, he went on to say that the em¬ 
ployer had the right to discharge the employee and the employee had 
the corresponding right to quit the employment, and that there was 
no remedy unless it was a suit for damages. And he cited a long 
list of authorities, and among those authorities was Arthur v. Oakes, 
decided by himself, denying the right to injunction to protect this 
right to make contracts with workingmen to work for wages. 

Senator O’ Gorman. Where is that case reported? 

Mr. Spelling. In 63 Federal Reporter, page 310. 

It is not necessary, and I do not now consider it necessary, for me 
to take up these cases and try to review them and their doctrine. I 
will admit that this fallacy, this heresy, that the right to do business is 
property, has been sustained in some courts—that is, in quite a num¬ 
ber of cases, State and Federal. If that were not true, gentlemen, the 
proponents of this measure would not be here to-day seeking legis¬ 
lation. 

Senator O’Gorman. You propose by this act to change that law as 
recognized heretofore in the courts? Is tliat-correct? 

Mr. Spelling. This bill does not prevent the courts holding busi¬ 
ness to be property. Nevertheless, when you provide that they 
have to- 

Senator O’ Gorman (interposing). Is that the point? Assuming 
the courts have gone wrong on that proposition, liow is your argu¬ 
ment before us relevant, if, as you say, this act does not attempt 
to interfere with that rule ? 



LIMITING FEDERAL INJUNCTIONS. 


35 


Mr. Spelling. I was just proceeding to say—I had not answered 
your question, but I will in a moment—that you will find, if you 
examine these cases of which labor complains, that every one of 
them, without exception, is based on this assumption, that the right 
to do business is property. Every one in which there has been an 
abuse, every one in which the complaints were defective and the 
orders were too broad or too vague, could never be issued except on 
that assumption, that the right to do business is property, and that 
is the reason I dwell on it to show the real need of legislative action. 

I want to answer the Senator’s question before it passes out of 
my mind. 

It is relevant here on account of section 266b and part of section 
266c. They require that the complaint shall— I do not know that I 
can quote the language of the bill—describe the property or property 
right “with particularity.” 

Senator O’Gorman. That is, that the order shall be specific in terms 
and shall describe in reasonable detail and not by reference to the 
bill of complaint. 

Mr. Spelling. That is one provision. Also it contains this addi¬ 
tional and very valuable provision, that the alleged irreparable 
injury—I do not know that I can give the exact language of the bill— 
shall be set forth and described in detail or with certainty in the order. 
Section 266c says that no restraining order or injunction shall be 
granted “unless necessary to prevent irreparable injury to property 
or to property right of the party making the application, for which 
injury there is no adequate remedy at law, and such property or 
property right must be described with particularity in the applica¬ 
tion” and so on. I consider that provision of the bill a valuable safe¬ 
guard against abuses. 

If a court will try to do its duty, and will scrutinize the complaint 
according to this bill, if it should become a law, it will be difficult for 
these learned and cunning and scheming attorneys, these enterprising 
fellows, zealous for big business—that is, for the corporations for 
whom they work-—to evade the law and procure the issuance of 
injunctions on defective complaints, as they have been doing here¬ 
tofore, getting broad, sweeping injunctions and restraining orders 
which hardly gave the men a chance to breathe, and then surrepti¬ 
tiously withdrawing the papers, so that nobody could ever call them 
to account or hold their clients responsible. And the working 
people who have been demoralized and dispersed by a proceeding of 
that kind have no remedy on earth. 

Senator Sutherland. What do you mean by that? 

Mr. Spelling. This is one of the abuses that section 266b and part 
of section 266c, in regard to the order, and what the order shall 
contain, and what the complaint shall contain, intends to protect 
them against. 

Senator Sutherland. What do you mean by “surreptitiously 
withdrawing the papers ” ? 

Mr. Spelling. I clo not want to become a witness to facts, and I 
do not want to be drawn away from the line of my argument. 

Senator Sutherland. Does that mean withdrawing original files 
from the court ? . 

Mr. Spelling. It has been my personal experience and I have 
made search for the complaints in these cases and for the original 


36 


LIMITING FEDERAL INJUNCTIONS. 


order on file, and I have sent to various clerks of courts, and almost 
invariably tlie answer comes back that they can not find even a scrap 
of the record. Right here in the District of Columbia—-I will come so 
close to you that I would not dare to prevaricate—in 1906 one of 
these blanket injunctions was issued against the Columbia Typo¬ 
graphical Union. 

Mr. Emery. Bender v. Typographical Union ? 

Mr. Spelling. No; Adams v. the Columbia Typographical Union. 
That was during the pendency of an argument before the House com¬ 
mittee that it was issued. I started out to find that complaint and 
the original order. To make a long story short, there was not a scrap 
or a trace of them in the clerk’s office. I was sent to the attorney 
for the plaintiff, and he pretended they were lost. If it becomes an 
issue, I will give the name of the person. 

In the record made here by Mr. Monaghan, this committee called 
on him to produce the records in 34 cases. He brought just 3 
complaints and 14 injunction and restraining orders, and put them 
in the record, and that is all. 

In the argument I would make, if I had a good chance, I would take 
these up and show the total defectiveness of those complaints, and 
the infamy—I do not like to use so harsh a word, but I will say the 
iniquity—of issuing such restraining orders and injunctions as were 
issued in those cases. They are right here in the record, beginning 
at page 157, and may be inspected by members of the committee. 

I will continue on in the line of my argument. 

I was just demonstrating that the right to do business is not prop¬ 
erty. The magnitude of the corporation’s business cuts no figure. 
It is in no better position than a match peddler in this respect. That is 
true unless we repudiate this maxim, this truism or constiutional 
principle, that all men are equal before the law. 

Suppose now that Smith, the employee, hears in advance that the 
corporation intends to discharge him and hies a bill to enjoin it. 
The corporation managers would be utterly astounded, as well they 
might be, and yet that corporation has no more a vested or property 
right in that abstract thing called “ business” than the workingman 
. has in the use of his hands and faculties. Surely, it will not be con¬ 
tended that the courts can discriminate in this matter, or that any 
chancellor could establish what we term “ discriminating ” or, to use 
a vulgar phrase, “jug-handled” equity. 

In Worthington v. Waring (157 Mass., 421) we have a case whose 
principle and language is a statement in a slightly different form 
from that which I have been using. The facts appear in the part of 
the opinion which I am about to read as follows: 

We take the substance of the petition to be that the petitioners were weavers by 
trade and had been employed by the Narragansett mills, a corporation in Fall River, 
and that they demanded higher wages, which the corporation refused to give, and they 
then left work; and the defendants sent their names to the officers of other mills in 
Fall River on a list which is called a black list, and which informed these officers that 
the petitioners had left the Narragansett bill on what is called a strike, whereupon 
the defendants conspired together, and with the officers of other mills, and agreed not 
to employ the petitioners, with the intent to compel them either to go without work 
in Fall River or to go back to work for the Narragansett mills at such wages as the 
corporation should see fit to pay them. It does not appear by the petition that any of 
the petitioners had existing contracts for labor with which the defendants interfered. 
If the petition sets forth that such a conspiracy as constitutes a misdemeanor at common 
law—on which we express no opinion—the remedy is by indictment. If the injury 


LIMITING FEDERAL INJUNCTIONS. 


37 


which has been received by the petitioners at the time the petition was filed consti¬ 
tutes a cause of action—on which we express no opinion—the'remedy is by an action 
of tort, to be brought by each petitioner separately. 

The only grievance alleged, which* is continuing in its nature, is the conspiracy 
not to employ the petitioners, and there are no approved precedents in equity for 
enjoining the defendants from continuing such a conspiracy or for compelling the 
defendants either to employ the petitioners or to procure employment for them with 
other persons. (See Workman v. Smith, 155 Mass., 92; Carleton v. Rugg, 149 Mass., 
570, 5 L. R. A., 193; Smith v. Smith, 148 Mass., 1; Raymond v. Russell, 143 Mass., 
295; 58 Amer. Rep., 137; Boston Diatite Co. v. Florence Manufacturing Co., 114 
Mass., 69; 19 Amer. Rep., 310.) It is plain, however, that the petition was drawn 
with a view to obtaining some equitable relief. It is well known that equity has, in 
general, no jurisdiction to restrain the commission of crime or to assess damages for 
torts already committed. Courts of equity often protect property from threatened 
injury when the rights of property are equitable, or when, although the rights are 
legal, the civil and criminal remedies at common law are not adequate; but the 
rights which the petitioners allege the defendants were violating at the time the peti¬ 
tion was filed are personal rights as distinguished from rights of property. 

Along that line, since we have become so accustomed to the use of 
the word boycott, I beg leave to submit that here was an instance of 
a boycott, one of the most vicious and reprehensible imaginable, only 
it was called a blacklist—in this case of Worthington v. Waring 
(157 Mass., 421). 

In the Debs case, which was one of the cases that has been much 
used—overworked, in fact, in these hearings—it was not held that 
a court could, without property right as a basis, enjoin a body of 
strikers. There has been no end of talk about the Debs case, and 
it ought not to be necessary for me to say that it was based on two 
grounds of jurisdiction. One was the possession of the corpus of 
railroad property. The other was the right of Federal courts to 
protect the public against nuisances, a doctrine which had its origin 
in the right to prevent projections on navigable waters; but that is 
an exceptional jurisdiction; that is ancient doctrine, existing from 
time immemorial. The English Crown always was possessed of navi¬ 
gable waters and public highways and -could always enjoin. I feel 
like apologizing, here and now, for being in the Debs case so often. 
But we meet it at every turn in the argument of the opposition. It 
would seem to have been their main reliance. 

In that Debs case it was not held that a court could, without prop¬ 
erty right as a basis, enjoin a body of strikers. On the contrary, it 
was clearly recognized that a basis of property right was essential. 
In that case (158 U. S., 583) the court said: 

It is said that equity only interferes for the protection of property, and that the 
Government has no property interest. A sufficient reply is that the United States 
have a property in the mails, the protection of which was one of the purposes of this 
bill. i 

The court then proceeds to discuss such property in the mails, 
citing cases. 

All such cases as the Debs case, all obstructions of railway trans¬ 
portation, can be enjoined by the Government if this bill shall pass 
as before. (See Debs case, 158 U. S., 587, and cases cited.) Injunc¬ 
tions will issue in such cases as heretofore, not only to protect prop¬ 
erty, but because such obstructions constitute public nuisances. 

At the Fifty-ninth Congress the question of good will and the 
mooted question of its connection with the right to do business, 
again here brought up before the Senate committee,, was brought up 
and met by me, I think fully; and any member of this committee will 


38 


LIMITING FEDERAL INJUNCTIONS. 


be furnished with a copy of my argument in answer to Mr. Davenport 
on that subject. 

The Chairman. Has it been printed ? 

Mr. Spelling. It is in the House hearings of four and six years ago. 

The Chairman. Perhaps if you can give reference to the document 
number it will help us to locate it. 

Mr. Spelling. It is in the House hearings of 1908, my argument, 
the only argument I made on the proposed injunction bill of that 
session. It was printed by order of the committee by the Government 
Printing Office in 1908, but was not given a number. It was entitled 
“ Committee upon the Judiciary, House of Representatives, Sixtieth 
Congress. Argument of Mr. T. C. Spelling in favor of the so-called 
anti-injunction bill . 7 ’ The argument was made before the Committee 
on Wednesday, February 5, 1908. 

At the close of the Fifty-ninth Congress I presented and filed a. 
reply to a report to a subcommittee which brought up that proposi¬ 
tion, and I went into it still more elaborately. A copy of that can 
be obtained by any member of this committee. I will do my best 
to see that any member of the committee who wants it shall receive 
a copy. I am not sure that they can be furnished. The men who 
made the report are not in Congress now, and I am not sure that they 
have returned the documents to the full committee or that they went 
into the record. 

Senator Nelson. What is the substance of your views on this mat¬ 
ter of good will ? 

Mr. Spelling. Good will is property and entitled to protection by 
injunction, but it never did and never could arise in a dispute between 
employers and employees about wages or anything else. It is sepa¬ 
rable and distinct from the right to do business and from the business 
itself. I want to demonstrate that as nearly as I can. 

Senator Nelson. Does not the question of good will include the 
right to do business ? 

Mr. Spelling. The right to do business can be emphasized- 

Senator Nelson (interposing). If a man can not carry on his busi¬ 
ness, how can he have a good will ? 

Mr. Spelling. Your hypothesis is correct. A man can not create 
good will without carrying on business. Good will is a result of 
exercising the right to do business. 

Senator Nelson. Then, while the matter is in its infancy, as it 
were, and getting started, it is not entitled to protection; but when 
it is accumulated and when it has been going on a sufficient length of 
time to constitute what you call good will, it is amenable to equitable 
protection. Is that ybur view ? 

Mr. Spelling. The good will is entitled to equitable protection 
against any wrongs that can possibly injure it, ana those wrongs can 
only consist in similation or imitation. Nobody in this country or 
any other ever heard of a labor organization or body of employees 
simulating or trying to imitate a trade-mark or otherwise to injure 
the good will of a business. At any rate, none of the attorneys for 
associations and corporations have ever found an instance of a 
threatened injury to the good will in any of these proceedings. 

Senator Nelson. Is there any such thing as a good wdl apper¬ 
taining to law business—to carry on the law business, or to carry on 
the business of a doctor, to be an engineer, or to be a laboring man ? 



LIMITING FEDERAL INJUNCTIONS. 


39 


Is there any such good will or anything like good will appertaining 
to such a trade or vocation? 

Mr. Spelling. It may be that what you have in mind is not good 
. will but reputation. I doubt if a lawyer has any good will he can 
sell or assign—or an engineer, or a doctor, or any of the professions 
of life. Good will is something that is a mere fiction now anyway, 
because it is covered by trade names and trade-marks under State 
and Federal statutes. 

Of course, at common law, and in the absence of statutes, there is 
such a thing as good will, and it is property; it survives; it survives 
the exercise of the right to do business: it survives the business itself. 

The opposition to the bill has seemed to acknowledge their error in 
confounding good will and business after hearing the distinction 
clearly pointed out, as it was by me, both at the hearing in the Fifty- 
ninth Congress and in my reply to the report of the committee filed at 
the same session. At any rate they; have ceased to harp upon it. 

Mr. Emery. May I make an inquiry ? 

Mr. Spelling. I do not like to oreak into this. I will be through 
in a moment, and then I will be glad to answer you. 

Good will and business are clearly distinguishable. It often 
requires some legal acumen—I address this to you, Mr. Emery—to 
distinguish between things which are similar and yet not identical. 
That is not the particular sentence I address to you, but what I am 
talking about as an entirety. 

To repeat, it often requires some legal acumen to distinguish 
between things which are similar and yet not identical. But there 
should be none here. Our conception of the difference between good 
will and business ought to be clear. 

Permit me to call attention to a fact which ought alone to remove 
the good will from the domain of discussion. No case of an injunction 
growing out of a labor dispute can be found in which the good will 
was ever referred to, and, indeed, it is impossible to conceive of an 
attack being directed against the good will by the disputants on 
either side of such a controversy. 

Good will as property is produced in the same way that any other 
property is produced; that is, by labor, by exercising the right to do 
business. 

In fact, the good will is a mere fiction as property, and under the 
modern regime of trade-marks and trade names and registry laws for 
these the good will never alone becomes the subject of litigation. 
The trade name covers the good will and is practically the only evi¬ 
dence of its existence. There can not, in the nature of the case, be 
any infringement of the property right in good will separate and dis¬ 
tinct from the infringement of the trade name. Infringement can 
only consist in duplication or simulation. It is enjoined because it 
is a fraud upon the public as well as upon the owner of the trade 
name or good will. An infringement is never involved in a dispute 
between employer and employees, nor in any matter involving, relat¬ 
ing to, or growing out of a labor dispute. 

The good will, after its creation through the exercise of the right 
to do business, being property, may be sold or inherited after the 
business has terminated. For illustration, I could cite the case of a 
large publishing house in New York which, after a long and successful 
career, failed in business, its failure having resulted mainly from 


40 


LIMITING FEDERAL INJUNCTIONS. 


disagreements with its employees. But the most valuable asset of 
the insolvent after its doors were closed was its good will—that is to 
say, its trade name—and that was sold to a new company for a 
large sum. That is a big publishing house that did business on 
Franklin Square. 

I will answer your question now, Mr. Emery. 

Mr. Emery. Did I understand you correctly to say that good will 
can be disposed of, but was not protectable by injunction? 

Mr. Spelling. Oh, no; I never said that. The record shows that 
I did not. It can be protected from the only wrong that can do it 
any harm. 

Mr. Emery. It can be protected by injunction where it is disposed 
of to another person and the person disposing of it attempts to do it 
harm in the time covered by the contract of sale ? N 

Mr. Spelling. You are thinking of something that is not depend¬ 
ent on the existence of good will for its existence at all. What you 
are thinking of is a contract in reasonable restraint of trade. There 
is an exception to the general rule that restraints of trade are illegal. 
You may, in popular parlance, say a man sells his business, but he 
does no such thing in reality. 

Mr. Emery. I am referring to what the courts call it and what the 
terms of the contract call it. 

Mr. Spelling. Yes, I understand you. A man had conducted 
business here on Pennsylvania Avenue. He is an extensive dealer 
in clothing. Another man comes along and says, “I want to buy 
your business/’ and they agree on $10,000 as the purchase price. 
As a part consideration for that $10,000 is the stock of goods, or pos¬ 
sibly a lease on the premises there. Another consideration or part 
of the consideration is the agreement of the vendor of the goods that 
he will not go into the same business again within a year or within 
five years. Although they may be in one instrument, there are two 
contracts in reality, and the one under which the man agrees not to 
go into business is in restraint of trade, but it is permissible, because 
under the common law it is reasonable, and under local laws in this 
country would be reasonable, and might be under the Supreme Court’s 
decisions. I do not want to take up those decisions, however, this 
afternoon. 

Mr. Emery. With your permission, I want to call the attention of 
the committee to your statement respecting an argument made before 
the committee of the House on the subject of good will and the right 
to do business as property rights, as distinguished from the thing in 
which they exist, and to ask if you will recall that the subcommittee, 
consisting of both Democratic and Republican members of the 
Judiciary Committee of the House, after hearing arguments on both 
sides, reported to the House, in answer to their inquiry as to whether 
or not the right to do business was itself a property right, subject to 
protection by injunction as distinguished from the real property or 
personal property which might be the subject of the right to do busi¬ 
ness, and in 1908 the gentleman will remember that subcommittee 
did report to the House, the Democratic and Republican members 
being unanimous in their conclusion, that the right to do business was 
a property right, subject to protection by injunction. That report 
is on file. 


LIMITING FEDERAL INJUNCTIONS. 


41 


Mr. Spelling. I do not know, Mr. Emery. I think really that 
they got ashamed of their report—though perhaps I should not say 
that. I know that no action was ever taken except to prepare a 
report. 

Mr. Emery. The Judiciary Committee was formally asked to re¬ 
port on that subject to the House. The Judiciary Committee dele¬ 
gated that task to a subcommittee, which reported to the Judiciary 
Committee, and they took the report and gave it to the House in the 
form of a formal report. 

Mr. Arthur E. Holder. If I may be permitted, I think Mr. 
Emery is a little in error. That subcommittee only reported to the 
full committee. It was never reported to the House. 

Mr. Spelling. Of course, that is true; and I do not think the full 
committee ever paid any attention to it. I do not think they ever 
received the report. I might go further and say that my reply to it 
was so conclusive—though that may be assuming too much—but it 
was so satisfying that that question was never raised again, although 
the question was argued before the House committee, and it was not 
raised again until the Sixtieth Congress, and then there was a col¬ 
loquy about it between myself and the members of the committee— 
you, Mr. Emery, and Air. Davenport, and other attorneys in oppo¬ 
sition sitting there and never saying a word; but you did not say a 
word in your argument, either. The committee was completely 
satisfied and the matter never lias been heard of since except here, 
not even in all the hearings before the House committee. 

Air. Emery. So completely satisfied that you remember Air. Little¬ 
field made your discussion on that matter the subject matter of his 
address to the House in Alay, 1908. , 

Air. Spelling. I was not aware that he had so complimented me. 
If Mr. Littlefield made that the subject, with all his ability, he had a 
difficult task if he did justice to the paper itself. I do not dispute 
your word, however. 

Senator Nelson. You think it was too big a text? 

Air. Spelling. Yes; for Air. Littlefield, on account of his bias, even 
with all his ability. He lives in my adopted State of New York, and 
is a man whom I, of course, respect for his abilities. 

Senator Sutherland. I would like to ask another question. 

Mr. Spelling. Certainly. 

Senator Sutherland. The Pearre bill, as I recall, in express terms 
provided that the right to do business should not be regarded as a 
property right, did it not ? 

Air. Spelling. Yes; that an injunction could not issue in any case 
except to prevent irreparable injury to property, or to a property 
right, and that the right to do or carry on business at any particular 
place or at all should not be held, treated, or considered as a property 
right, within the meaning of the act. That is not it literally, but that 
is the substance of it. 

Senator Sutherland. This bill follows in some particulars the 
Pearre bill, but it leaves out that particular provision. Do you 
know why that was done ? 

Air. Spelling. That was the very heart of the Pearre bill. 

Senator Sutherland. Why was that provision left out of this bill ? 

Mr. Spelling. I do not serve on the House Judiciary Committee. 


42 


LIMITING FEDERAL INJUNCTIONS. 


Senator Sutherland. Can not you make a pretty good guess at 
it? Was it not because the House committee and the House itself 
did not want to go to the extent of saying that the right to do busi¬ 
ness should not be regarded as a property right ? 

Mr. Spelling. You may be entirely correct, but I would not 
like to say so, not knowing. I have no way to account for what 
committees will do, or why they do it. 

The Chairman. Mr. Spelling, perhaps you had better determine 
in your own mind what would be a good stopping place when you 
come to a point where you reach the conclusion of some particular 
subject, as it will not be long before we will have to go. We do 
not want to hurry you, but rather than break off in the midst of 
a proposition, it is better to finish one thing and not begin another. 

Mr. Spelling. I have already read the quotation of Mr. Hines from 
High on Injunctions, section 20. The extract which he read was as 
follows: 

The subject matter of the jurisdiction of equity being the protection of private 
property and of civil rights, courts of equity will not interfere for the punishment or 
prevention of merely criminal or immoral acts, unconnected with violations of private 
rights. 

This was produced to give a color of justification to the use of the 
injunction in labor disputes for the assertion and enforcement of 
such perspnal rights as that of doing or continuing business, inas¬ 
much as they belong to the class designated “ civil rights,” the same 
as the right to perform labor, notwithstanding it is a personal right 
which you can not protect by injunction, is a civil right—that is, as 
against a civil wrong. I might go further, and say you can not protect 
it as against a criminal wrong, according to the fundamental princi¬ 
ples of equity, unless the criminal wrong is also an injury to property. 
But section 20 of High on Injunctions, and the part of section 20 
which he did not read, constitute a complete answer to all he said on 
the subject. 

Senator Nelson. There is a species of injunction in criminal cases 
where the man who makes a threat against a person’s life or against 
his person can be brought before a justice of the peace and compelled 
to give bond to keep the peace. 

Mr. Spelling. That is the old English law, under a statute. 

Senator Nelson. That is a species of injunction, is it not? 

Mr. Spelling. Not except under statute. That was an old English 
statute, which was referred to by Justice Bradley in Kidd v. Horry. 
He showed in what the error consists, and the error in many de¬ 
cisions that counsel in opposition here have cited is the same. They 
have taken as precedents English cases under that statute, and they 
have taken State cases under State statutes where the statutory 
authority or provision was not explained. Justice Bradley showed 
how this body of error and usurpation by many courts—if I may not 
use so harsh a term, this assumption of jurisdiction, has come about 
from an initial error which was committed by some court because of 
not paying attention to the real basis of jurisdiction in some case 
where the decision was based on statute; and then some other court 
would take that decision and render another erroneous decision, and 
the first thing we knew there was a great body of error built up in the 
form of judicial decisions. We are here asking Congress to demolish 


LIMITING FEDERAL INJUNCTIONS. 


43 


it, because it can not be done in any other way, unless we allow it to 
permeate and poison the whole body of jurisprudence in this country. 

I have explained where Mr. Hines got wrong and why he should 
have quoted that whole section, and I have quoted section 20b to 
show that he was wrong. 

Counsel for the opposition appear unable to avoid occasional lapses 
of memory' in recitals of their respective parts in the farce of killing 
time before committees, and during those lapses inadvertently admit 
the fundamental limitation of equitable jurisdiction to property 
rights. As instances in point, I quote the following: 

Mr. Monaghan, at page 87, says: 

Under and by virtue of the Constitution of the United States no citizen can be 
deprived of life, liberty, or property without due process of law. When by proper 
procedure a litigant presents to a Federal court in equity facts showing that irreparable 
harm is threatened and that no adequate remedy at law exists, “due process of law” 
entitles him to the issuance without notice and healing of a restraining order, to the 
end that his property may be preserved. The denial of this right is a denial of due 
process of law. 

Mr. Davenport, at pages 22 and 23 of these hearings, said: 

Under the decision of the United States in this Adair case, and supported by a 
very large number of decisions everywhere, those things that in the Pearre bill were 
sought to be declared not to be property rights are property rights and would be 
covered by the first clause of this bill. But the bill goes on then to say that a cer¬ 
tain class of acts attacking your property rights shall not be enjoined against, and 
this is the way it reads. 

Mr. Davenport was then interrupted, as shown by the record, as 
follows: 

Senator Sutherland. May I interrupt you again? I had understood—I do not 
know where I saw it or where I heard it—that it has been claimed that the provision 
in this bill now pending with reference to property rights would not include the 
right to do business. I wondered what the foundation of that was. 

Mr. Davenport. In construing this bill I suppose the courts would say that what 
the courts had said time out of mind are property rights would be covered by that 
first section, and that when it says that “unless to preverit irreparable injury to 
property or to a property right” whatever fell within that definition of property 
w r ould be covered by the term. 

Senator Root. You do not find anything of this language, do you, which under¬ 
takes to change the law in that respect? 

Mr. Davenport. Not in that respect. 

But why did they devote so much time and so much space to a 
discussion" of that question with the fact before them that this bill 
does not raise the issue ? I might ask myself the question why am I 
devoting so much time in answering ? So far as I am concerned it is 
because it is an irrepressible issue, because it is the evil that has to be 
uprooted, and the committee shows a commendable as well as a deep 
interest in it, else its members would not ask questions which keep 
me on it. I am not complaining; I am also interested. It is the 
germ of the false assumption in all these cases of abuse in the issuance 
of injunctions and restraining orders. 

I am not quite done in giving the admissions of counsel which go 
to establish the correctness of my position. 

Mr. Hines said, at pages 30 and 31 of the record of these hearings: 

Air. Hines. Limitation to property rights seemed designed to exclude remedies to 
protect the person and to protect personal freedom, although those remedies are 
particularly necessary in labor disputes. 

The limilation absolutely to propejty or to property rights seems to narrow, at least 
somewhat, the basis for equitable intervention. Pomeroy, in the sixth volume of his 


44 


LIMITING FEDERAL INJUNCTIONS. 


work on equity, page 579, seems to recognize that equity will intervene to protect the 
right of personal freedom of a man to come to and from his work and puts the inter¬ 
vention on the ground of protecting that element of personal freedom. 

We find in other cases Ihe general statement that while equity jurisdiction will not 
be exercised for the enforcement of criminal law, yet it may he exercised for the 
protection of civil rights. It is true generally, and perhaps it is particularly true in the 
case of a railway company, that it will always be possible .to demonstrate the existence 
of a property right; but, nevertheless, if the general doctrine of equitable intervention 
is somewhat broader than that, it seems particularly unwise to put this.limital ion here 
where undoubtedly one of the things which is most infringed is the right of personal 
liberty. 

The Chairma n. Would that term include the mere right to do business, for example, 
where a man has a stock of goods, the goods themsel'ves not.being interfered with? 
Could you say that the right of that man to continue his business and dispose of his 
goods was a property right? 

Mr. Hines. I should say it would be an open question in the construction of this 
section. Undoubtedly he has a right equity ought to protect, and this section would 
seem to make it a question whether it is such a right that equity would protect in the 
labor disputes. The pbint I urge is, in view of the doubt that is cast upon the extent 
of the foundation of equitable interference in these cases, that the provision ought 
to be omitted, because if there is any class of cases where equity ever goes beyond 
these bare property rights, certainly this is the class of cases where it ought to do that 
thing, because the" things that are involved here are so largely matters of liberty and 
so largely matters of protection of the persons of individuals who ought to be regarded 
as entitled to equitable protection when no other remedy is available. * 

Mr. Dillard, at pages 8 and 9, part 3 of the record of the hearings 
before this committee, said: 

I trust it will not be extended; I hope it will not be. I desire to call attention to 
the fact, however, in passing, and in doing so to say this: The purpose of the injunc¬ 
tion sought is, we will say, for the preservation of property. This being true, if it 
appears to the judge by a preponderance of the evidence that irreparable injury is 
likely to result, that property is likely to be destroyed, then it would seem to me 
sufficient foundation has been laid for the issuance of the injunction. 

Senator O’Gorman. I have always understood that to be the accepted rule in all 
jurisdictions, and the case you speak of seems to be the exception. 

Mr. Dillard. I am sure the rule, as I stated it, has been-held in several jurisdic¬ 
tions. 

If the committee please, I am willing to come here and go on with 
this argument hour after hour until I can complete it, if one member 
of the committee or any number that want to come and hear it will 
come, because I have scarcely entered upon the provisions of this bill. 

I would like to take some of these complaints that are put into the 
record by Mr. Monaghan and some which I have at hand in the 
hearings before the House committee, these orders and injunctions 
and omplaints, and point out their defects and shortcomings so as 
to show a number of distinct and specific evils that this bill provides 
against. I would like to take up the constitutional questions, not to 
make a constitutional argument, but to answer the constitutional 
objections which have been aimed at and advanced here against this 
bill, which I think are utterly groundless, and yet, even though they 
might not have found lodgment in the mind of any member of this 
committee, those legal arguments of these counsel will be spread 
broadcast and read before other Members of the Congress—Senators 
and Members of the House. 

Senator Nelson. It is your view, Mr. Spelling, that the right to 
carry on the business of manufacturing, say, agricultural implements 
is not a property right? 

Mr. Spelling. That is my view. If you will go a little further, we 
will perhaps get a little light if you will ask me the other questions in 
your mind, the same as have been asked in other hearings. 


LIMITING FEDERAL INJUNCTIONS. 


45 


Senator Nelson. This relates to another feature of the bill. Assum¬ 
ing that this long table, here, is a manufacturing establishment, 
devoted to the manufacture of agricultural implements; let us sup¬ 
pose a big crowd of strikers, a dense crowd of strikers, forms all 
around this table. 

Mr. Spelling. Or around the building ? 

Senator Nelson. Around this table, considering it the manufac¬ 
turing premises—a crowd so dense that no one can get in or out of 
the plant. They may not use any violence and may have no weap¬ 
ons; may strike nobody; but still the gathering of strikers all around 
this table may be so dense that no one can get in or get out. In such 
a case, would you want no injunction against that condition, or do 
you want that condition to exist ? 

Mr. Spelling. No; I would want the injunction, and would want 
the owner to have the injunction. 

Senator Nelson. That would be a case of picketing, would it not? 

Mr. Spelling. No; it would be a private nuisance. That is an 
exceptional item of jurisdiction, and while on first impression it does 
not seem to be based on property right, yet does not that disturb 
the possession, which is a property right ? 

The Chairman. It disturbs the use; it disturbs the exercise of the 
right to use the property. 

Mr. Spelling. Yes; anything that disturbs the right to use prop¬ 
erty disturbs the possession and is a private nuisance, and may be a 
public nuisance. If it is in the street, it is a public nuisance. 

Senator Sutherland. But in this bill you provide no restraining 
order or injunction shall prohibit any person or persons—and that 
means any number of persons—from standing at or near a house or 
place where any person resides or works or carries on business or hap¬ 
pens to be. 

Mr. Spelling. Yes. 

Senator Sutherland. If we pass a law which provides that no 
restraining order or injunction shall prohibit any person or persons 
from attending at or near a house or place where any person resides 
or works, would it not be in the very teeth of that statute to issue 
an injunction against that large number of people attending about 
any house ? 

Mr. Spelling. Oh, no. In a case like that, or in any case, apply¬ 
ing this bill to any case that can be imagined, of a violation of city 
ordinances or statutory law, the police power lies outside of the 
letter and spirit of this bill. The last clause of this act says: 

Or from doing any act or thing which might be lawfully done in the absence of a 
trade dispute. 

That colors all the preceding clauses, as counsel in opposition admit. 
And even without that, no court could consider the provision of this 
act as repealing any part of the police power, the duty of the police 
to prevent violations of the law and disturbances of the peace, the 
assembling of persons in such a way as to constitute either a private 
or a public nuisance, or assembling on any property where they did 
not have the legal right to assemble or did not have the consent of 
the owner, or which was not a public place where they had the lawful 
right. 

The police have control of those matters now under the criminal 
laws, and they would still have that < ontrol, notwithstanding any- 


46 


LIMITING FEDERAL INJUNCTIONS. 


thing in this bill, because there is not a word in it that you can put 
your finger on that even by implication, as I understand it, repeals or 
attempts to repeal any other law. 

Senator Nelson. Let me ask a question right there. Does not one 
provision of the last section of this bill prevent any injunction in cases 
of what I may call a primary and secondary boycott ? 

Mr. Spelling. That is a large subject of itself, Senator. 

Senator Nelson. You need not go into a discussion of it, but is not 
that the purpose of the bill ? 

Mr. Spelling. I do not know anything about the incentive in the 
minds of those who supported that bill in the House, and voted on it 
in the House. 

Senator Nelson. Let me quote the language: 

Or from ceasing to patronize or to employ any party to such dispute. 

Does not that refer to a kind of boycott ? 

Mr. Spelling. I think you really have in mind the next clause. 
That is the primary boycott you read, without a doubt. Is not the 
next clause, about advising and persuading, the one you have in mind ? 

Senator Nelson. This phrase I have read is the one I have refer¬ 
ence to. 

If I have the proper construction of that language, it implies that 
you do not want any injunctive process or restraining order in case 
of either what I call primary or secondary boycott. You want 
that right to be unlimited—without restriction. Is not that your 
purpose ? Is not that the purpose of the bill ? 

Mr. Spelling. I have no purpose. 

Senator Nelson. I do not mean you, personally, Mr. Spelling; but 
is not that a part of the purpose of the bill ? 

Senator Sutherland. Would not that be the effect of the bill? 

Mr. Spelling. I could not answer as to what Representatives had 
in mind; but I would like to make the response which I think you 
want made—my view. 

Senator Nelson. Certainly; it is your view we would like to get. 

Mr. Spelling. You know the courts are in a state of hopeless con¬ 
fusion as to a distinction between primary and secondary boycott. 
I will give my understanding: 

0 !A primary boycott is any kind of a crusade between the original 
parties to a dispute, whether it is a labor dispute or any other kind 
of a dispute. In that case either party can refuse to trade with the 
other party or can ostracise him, I might say, in any other way. But 
he need not do that only. He can as well advise all his friends to do it. 
He can put in all his time trying to bring about the breaking up of 
that man’s business. 

Senator Nelson. Is that what you want? 

Mr. Spelling. While I need not try to justify that in morals, I 
say, without the fear of successful contradiction, that that is legal 
how and recognized as such by the courts. That is a primary 
boycott. 

The Chairman. Do you mean friends similarly situated ? 

Mr. Spelling. No; I would not limit it to that. The country is 
full to overflowing with boycotts. There are millions and millions 
of boycotts going on every day. It is not necessary to take a man’s 
trade away from him. It may be by breaking his reputation and 


LIMITING FEDERAL INJUNCTIONS. 


47 


destroying the peace of his home, or taking patronage away from his 
hotel. Sometimes a boycott is not only legal, but commendable. 
Wouldn’t it be commendable to take business away from a hotel that 
is full of bedbugs and spiders ? [Laughter.] But let us not get into 
these quibbles. Let us not get too facetious. 

That is a primary boycott. A secondary boycott can not exist 
without a conspiracy being formed. A conspiracy is a distinct 
criminal act. 

Senator Nelson. I do not agree with you about that. 

Mr. Spelling. The formation of a conspiracy, I should say, is a 
distinct criminal act. 

Senator Nelson. What I understand by a secondary boycott is- 

Mr. Spelling (interrupting). I am trying to give you the definition. 
Let us get something to use for illustration. We will say that mem¬ 
bers of the polishers’ union at St. Louis get into a quarrel with a stove 
and range compaiiy about hours of labor or wages. They withdraw 
their trade. They not only do that, but they go to everybody in 
St. Louis and try to induce them to quit trading with that stove and 
range company. 

Mr. Emery. Is that irrespective of the existence of a contract ? 

Mr. Spelling. I can not answer that right now. I will in a mo¬ 
ment. 

The very court that decided such a case, the Court of Appeals of the 
District of Columbia, said that was legal and could not be enjoined. 
But suppose the metal polishers’ union of St. Louis, a party to that 
dispute, goes to Cleveland and tells Mr. John Brown, a retail dealer 
in Cleveland, “You have been warned not to trade with such and 
such a stove and range company. You have been asked not to do it.” 

So far, so good. So far, legal. But if they go on and say, “If you 
trade with them to the extent of buying any more of their product, a 
boycott will be started in Cleveland by the members of the organiza¬ 
tion in Cleveland and members of other trades-unions, to deprive you 
of that trade,” that begins a secondary boycott. 

Senator Nelson. That is correct. 

Senator Sutherland. Do you think this bill has the effect to pre¬ 
vent the issuance of an injunction in that case ? 

Mr. Spelling. I do not, because when they go to Cleveland and 
to the trades-unionists in Cleveland and agree together that they 
will start a trade crusade to take the business of John Brown away 
from him, that becomes a conspiracy, because the metal polishers of 
St. Louis have not any dispute with John Brown. 

The Chairman. Is not that a property right ? Is not the right of 
Brown & Co. to carry on their business a property right, according to 
your view ? 

Mr. Spelling. No; I do not think, according to the fundamental and 
correct views of equity, jurisdiction, and jurisprudence, that any court 
should even enjoin those people from boycotting that firm in Cleve¬ 
land, because it does not affect any property interests, unless you 
claim that Brown & Co. have a property interest in the detached 
patronage and trade of the country. 

The Chairman. Then you would prevent an injunction to restrain 
that secondary boycott ? 

Mr. Spelling. If I say that, Senator, it is outside of the issue 
before you and before this committee; but I do not hesitate to say 



48 


LIMITING FEDERAL INJUNCTIONS. 


that for a court to enjoin those parties in Cleveland under that state 
of facts would be an unwarranted assumption of jurisdiction. It is 
an injunction issued to control men in the exercise of their personal 
relations and liberties. However illegal and criminal it may be, it is 
not within the function of a court of equity to become an adminis¬ 
trator of the police law and power of a country or of any State. 

The Chairman. Let me see if I understand you correctly. Your 
idea is that there is now no just authority under our system of equity 
jurisprudence to enjoin such secondary boycott, and this bill would 
put into the statute your view of the limits upon our equity juris¬ 
prudence ? 

Mr. Spelling. Senator Root, I have not said that, nor have I 
intimated it. What I have said is totally inconsistent with any such 
conclusion, because I say that this bill forestalls and forbids and 
excludes anything unlawful; and that, whether it ought to be 
enjoined or not, as the law now stands, it could be enjoined, notwith¬ 
standing anything in the bill to the contrary, because that would be 
at least unlawful. I will admit that in a case like that, if those St. 
Louis metal polishers went there and got this agreement and arrange¬ 
ment with those Cleveland people, the conspiracy itself would be 
indictable under the common law and probably under the statutes of 
Ohio. 

The Chairman. But does it not follow, necessarily, from your view, 
that it could not be enjoined? 

Mr. Spelling. That is my idea, that equity has not now any juris¬ 
diction of the case. 

The Chairman. It could not be enjoined? You would leave it to 
be dealt with by criminal law, and exclude it from the operation of 
equity jurisdiction ? 

Mr. Spelling. It is totally immaterial what I would do. I will 
say this, and then you will understand me—that notwithstanding 
anything in this bill on the numerous authorities that counsel have 
quoted here, that could be enjoined and would be enjoined; but as 
to whether it ought to be within the legitimate bounds of equity, 
there is another question. 

The Chairman. Is it your view, if this bill passes as it is before us 
now, that that secondary boycott could be enjoined? 

Mr. Spelling. If the courts have been justified in the injunctions 
issued in cases heretofore or in some of the cases—for instance, in the 
Buck Stove & Range Co. case and in the case of the Toledo & Ann 
Arbor Railroad Co.—under the authority of those - cases and this case 
in the District of Columbia that I have mentioned, that could be 
enjoined, because it is not a primary boycott, but a secondary boycott 
which, under the same authorities and other authorities, comes within 
the definition of a conspiracy. 

Senator Sutherland. If I understand you, your view is that this 
bill does not prevent the issuance of an injunction in that kind of a 
case; in the case of a secondary boycott? 

Mr. Spelling. That is my conclusion. 

Senator Sutherland. As I understand you, you say that in the 
absence of this bill the injunction would not be issued; the injunction 
on a primary boycott. If that be so, what does your bill accomplish 
in that respect ? If the bill itself, properly construed, does not reach 
the secondary boycott and simply deals with the primary boycott, 
then it does an entirely ineffective thing, does it not ? 


LIMITING FEDERAL INJUNCTIONS. 


49 


Mr. Spelling. You ask whether an injunction would be issued 
against a primary boycott. You do not ask whether they have been 
issued. . They have been issued in some cases. It would get rid of 
these injunctions. 

Senator Nelson. What I would like to hear you discuss is to point 
out in what respects this bill, if it becomes a law, gives labor organ¬ 
izations a greater right for their own protection, you might say, or 
for their own benelit, than they now have under the existing law as 
interpreted by the leading courts of the country; not isolated cases* 
but taking the judicial consensus of the country. Wherein does this 
advance the remedy for you? I would like to have that pointed 
out—in what respects this bill changes the existing rule and wherein 
it gives you any greater rights or privileges than you have now. If 
it does not give you any more rights or privileges, there is no use in 
passing the bill; but if it gives you more rights and privileges w& 
want to know what they are. 

Mr. Spelling. I perfectly agree with you, and I do not want any 
greater honor or pleasure than the opportunity to comply with your 
suggestion. 

Senator Sutherland. I wish you would discuss, too, if you have 
not already arranged to do it, this feature of the bill which provides, 
for the seven days’ period for the operation of the injunction to begin 
to run from the date of entry of the injunction rather than from the 
date of service. 

Mr. Spelling. I will proceed now to comply with both requests,, 
as best I can. 

I will first answer Mr. Emery’s question. I presume he means a 
binding contract; otherwise it would not be cognizable, either at 
law or in equity. A loose promise to trade with a party is not such 
a contract. There must, of course, be mutual promises of value, or 
a specification of the amount to be purchased and of the price. 
Such contracts are enforceable by either party at law, and might,' 
perhaps, under some conceivable circumstances, which, however, I 
am not able to conceive, form the basis of a suit for injunction as 
between the parties. The matter appears to me entirely foreign to 
any issue before this committee. 

Senator Sutherland has just asked me to express myself on the 
proposition of changing the seven-day term at the end of which a 
hearing on the application shall be had, so as to run from seven days 
after service rather than seven days after filing of the application. 

There are several objections to such a change; but I could not state 
them all at this point fully without going over much that I have said 
or intend saying further on. But, in the first place, there is no neces¬ 
sity nor even a good reason for the change. Striking, picketing, and 
the like are not carried on by isolated or detached individuals, but by- 
organized and officered bodies. And when you serve the leaders, if 
you bring on the hearing and sustain the injunction as to them, the 
strike or whatever the trouble will end there. As to those elusive 
and mysterious persons mentioned by Mr. Hines and other counsel 
who resort to secret misdeeds or open crimes, it would be useless and 
vain to serve them with a notice or restraining order, even if you 
found them. As to them seven days would be no better than seven 
years. My second objection would be that to allow the proceedings 
to hang oVer the labor organizations while searching for fugitives 

S. Doc. 944, 62-2-4 


50 


LIMITING FEDERAL INJUNCTIONS. 


would be both unjust and disastrous. Delay, as I have shown, con¬ 
stitutes a bad feature of the present practice. It is usually immate¬ 
rial in a strike case, with respect to the effect of an injunction, whether 
it be properly or improperly granted. After all, labor’s great concern 
is to have the issuance of restraining orders and injunctions stopped, 
except in the exercise of rightful jurisdiction. Neither in the matter 
of notice nor in that of security are workingmen greatly interested. 
They are interested in having the hand of the court stayed, unless the 
case be such that an injunction would issue without reference to their 
class or condition. 

Mr. Hines and other counsel in opposition would have you believe 
that the members of labor organizations live in caves and tree tops or 
are so in the habit of skulking into dark alleys and byways that they 
can not be found within a reasonable time. But the whole plea is 
grossly and basely absurd. 

Section 266c naturally divides itself into two separate and distinct 
propositions, contained in two paragraphs, the first of which reads 
thus: 

Sec. 266c. That no restraining order or injunction shall be granted by any court 
of the United States or a judge or the judges thereof, in any case between an employer 
and employees, or between employers and employees, or between employees, or 
between persons employed and persons seeking employment, involving or growing 
out of a dispute concerning terms or conditions of employment, unless necessary to 
prevent irreparable injury to property or to property right of the party making the 
application for which injury there is no adequate remedy at law, and such property 
right must be described with particularity in the application, which must be in 
writing and sworn to by the applicant or by his agent or attorney. 

The words occurring therein “between an employee and employers 
or between employers and employees, or between persons employed 
and persons seeking employment, involving or growing out of a dis¬ 
pute concerning terms or conditions or employment,” were con¬ 
stantly called to the attention of the committee by counsel in opposi¬ 
tion, as a feature giving the bill the distinctive stamp of class legis¬ 
lation. 

Were it not for the discriminations between classes in exercising 
the jurisdiction, this provision, like many others in the bill, might be 
stricken out, without great public detriment. The paragraph would 
then state the laW as it is uniformly administered between parties 
where no labor dispute is involved. In many cases, where employers 
seek injunctions against laborers with whom they have a dispute, 
the language of this paragraph is turned round to read thus: 

That restraining orders and injunctions may be freely granted by the courts of the 
United States, or the judges thereof, in any case between employers and employees 
* * * involving or growing out of a dispute concerning terms or conditions of em¬ 
ployment, whether necessary or not to prevent irreparable injury to property or a 
property right, the party making the application being a business man, whether, or 
not the party has an adequate remedy at law. In such case, no property or property 
right need be particularly described or even mentioned in the application. 

The first clause of this paragraph to which I shall direct special 
attention reads thus: 

Unless necessary to prevent irreparable injury to property or to a property right 
of the party making the application for which injury there'is no adequate remedy 
at law. 

Next we have the requirement added to the foregoing provision 
that the restraining order or injunction shall not be granted unless 


LIMITING FEDERAL INJUNCTIONS. 


51 


the property or property right be described in the complaint, or 
application, “with particularity.” 

Much harm and abuse in labor cases are due to defects and short¬ 
comings of complaints upon which restraining orders and injunctions 
are granted at the outset. I deduce three causes, either one of 
which, or all together, may operate to bring about the miscarriage of 
justice seen in each instance. These are, first, an insufficient com¬ 
plaint; second, a mistaken view of duty, as a matter of law; third, 
an unfortunate environment preventing a comprehensive view of 
the rights of citizenship, or a false conception of the relation between 
capital and labor. But I discuss now only the insufficiency of 
complaints. 

I may safely assert as a general proposition to which, if there be 
an exception I have not seen it, that on two essential facts in all 
the cases the complaints are insufficiently specific to warrant the 
granting of the relief prayed. The complaints do not show (1) 
specifically that any property or propetry right is menaced with 
injury, or (2) in what way or by what means an irreparable injury 
would result if the alleged threatened act were done. 

INSUFFICIENT DESCRIPTION OF PROPERTY RIGHT. 

I need not here make any such point as that the right to carry on 
business is not property. For present purposes—that is to say, in 
this immediate connection—that is waived. But I make the point 
that additionally to that objection the allegations in the complaints 
with reference to property and property rights are insufficiently 
specific. 

In Hitchman Coal & Coke Co. v. Mitchell (172 Fed. Rep., 963), in 
which one of the restraining orders already noticed was granted by 
Judge Dayton, taking that as fairly representative, the complaint 
recited that the complainant owned valuable coal mines, mining 
machinery, etc., that it had large capital invested, that its operations 
were extensive and its sales large. Figures of aggregates were given 
in connection with some of the recitals, and there was a general 
assertion of damage. No interruption of its operations was alleged 
up to the date of filing the complaint nor any shown to be imminent. 
Whether, therefore, any property or property right was involved at 
all in what the defendants were alleged to be doing was left to infer¬ 
ence and conjecture. 

DEFECTIVE ALLEGATIONS OF IRREPARABLE INJURY. 

But the complaint fell still further short of the legal requirements 
that irreparable injury must be specifically alleged. Nothing is 
better understood, as the authorities used in the report from the 
House committee show, than that a mere general allegation of irrepar¬ 
able injury is not sufficient. And yet that is all that the complaint 
in the Hitchman case contained. The complaint asserted, as also in 
the case of Adams v. Typothetse of America brought in the District 
of Columbia, that the strikers were under contract which, by striking, 
they were violating; but it will be borne in mind that a long line of 
decisions, among which is Arthur v. Oakes, has settled the rule that 
courts have no power to forbid men to strike merely because of their 


52 


LIMITING FEDERAL INJUNCTIONS. 


being under contract to serve for a term which has not expired, and 
any other rule would violate the constitutional amendment against 
slavery and involuntary servitude. 

And there is another reason recognized in all other cases, but too 
often ignored in strike cases, namely, that a violated contract is 
compensable and hence reparable in damages. But there is ordi¬ 
narily, in fact, no damage or injury whatever in strike cases, because 
the injury actually suffered is such as was designated in National 
Fireproofing Co. v. Mason Builders’ Association and other cases as 
damnum absque injuria—that is to say, injury suffered by a party by 
action of another in the exercise of a lawful right. 

The complaint in the Hitchman case, like those in many others 
examined by me, was, notwithstanding its glaring defects, exceedingly 
verbose and voluminous, as if to make up in quantity what it lacked 
in quality. But it and the others contained the defects above noted 
ana others as well. 

To take up even one of these cases, analzye the pleadings and 
apply the law to the many and complicated facts, and then present 
the arguments necessary to overthrow the fallacies of counsel and 
subtle errors which have crept into the decision of the court would 
be a serious and stupendous undertaking. The fact is not to be 
overlooked that the wealth of the complainants in these cases enable 
them to employ the ablest counsel, to produce witnesses without 
limit, and to make extensive preparation precedent to sending out 
the thunderbolt in injunctive form; also that strikers have not the 
advantages and facilities just mentioned at hand to meet such a 
situation. There is always present the most important fact of all, 
that whether an injunction be issued rightfully or wrongfully, it 
usually does its fatal work, paralyzes the defendants, and ties the 
hands of their leaders, before even such presentation as they could 
make is heard. 

Hence the importance of the establishment of correct rules to 
govern the courts, the same to be in force before the injunction or 
restraining order issues; hence also the importance and justification 
of the prohibitions contained in the second clause of section 266c. 

IMPORTING A NEW ELEMENT INTO STRIKE CASES. 

Of recent years counsel for employing corporations became con¬ 
scious that without the importation of a new theory or doctrine into 
the law most of the applications for injunctions in strike cases must 
be denied, upon well-settled principles. Hence they imported the 
element of malice and made a distinction founded upon the purpose 
or incentives with which a strike was instituted. They undertook to 
analyze the feelings at work in the bosoms of the strikers. It must 
be apparent to all fair-minded and thoughtful members of the legal 
profession that where the thing done is itself lawful, the motive with 
which it is done or undertaken is unimportant, and that to allow 
courts of equity to sit in judgment upon the question of mental 
attitude in such cases is to completely unsettle all the law governing 
them and set up the chancellor in the midst of the labor organization 
at the inception of a strike as an arbiter of their conduct as well as a 
controller of their fates. It is not difficult to foresee the utter dis¬ 
ruption and dispersion of labor organizations and complete failure 


LIMITING FEDERAL INJUNCTIONS. 


53 


of all efforts of workingmen through organization and association to 
improve conditions if the attitude toward them thus assumed by the 
courts be maintained and no relief be afforded by legislation. 

It is exceedingly difficult to see or even to admit any consistency 
or possibility of a reconciliation between the views of those who stand 
for such doctrine and their professions of a belief in the right of wage 
earners to freely assemble, to discuss without restraint those business 
and social matters which vitally concern them, to form and maintain 
an organization; in short, to exercise in a collective or organized 
capacity any rights except such as are purely academic and consistent 
with subjection to such industrial conditions as employers choose 
to impose upon them, however tyrannical, miserable, and inhumane. 
If the Federal judges, sometimes overawed by the presence before 
them as litigants of financial magnates and powerful interests, and 
often unduly impressed with the importance of large property inter¬ 
ests and the promotion of commercial prosperity as against the lesser 
interests of labor, are to pass upon the motives or moral incentives 
instigating labor’s side in a labor dispute, then every word and act 
at their assemblages and meetings are proper subjects for investiga¬ 
tion and scrutiny, such, and only such, allowance to be made for 
human frailty, excitement, passion, and bias of self-interest as the 
judge sees fit to make. Under such dispensation what becomes of 
the constitutional guaranty of free assemblage, freedom of movement, 
and free speech ? What becomes of the prohibition against involun¬ 
tary servitude embodied in the thirteenth amendment, so eloquently 
expounded in Robinson v. Baldwin (165 U. S., 292), and more recently 
in Arthur v. Oakes (63 Fed. R., 310) ? 

Could any more complete and despotic one-man power over organ¬ 
ized labor be conceivable than will result if this new absolutism be 
not stayed. It was first evolved and enforced by Judge Taft in Moores 
v. Bricklayers’ Union (10 Ohio Dec., 165; 23 Ohio L. J., 48), while he 
served as a judge of the superior court at Cincinnati, and was fol¬ 
lowed up in similar cases decided by him while on the Federal bench. 
The language of Judge Noyes in National Fireproofing Co. v. Mason 
Bricklayers’ Association (145 Fed. R., 260) is the mildest and most 
reasonable statement of that false doctrine that we have found. And 
yet it is not difficult to see that if the question of whether, in deciding 
to strike, the men are influenced by good or bad motives, is to be 
judicially injected into a case, it means the trial in each instance of 
an issue of reasonableness or unreasonableness of their demands upon 
the employer, and gives the court an almost unlimited discretion. 
Especially is this so since there is no jury trial in such cases, they 
being treated as of purely equitable cognizance. 

Another and more recent application of this device for dealing with 
strikers is found in Paine Lumber Co. v. Neal, in which an injunction 
was issued in the southern district of New York in October, 1911, 
but not yet reported. But there have been many such subsequently 
to Moores v. Bricklayers’ Union. I can not discuss them with any 
attention to details, although some account of them can be found in 
the hearings before the House Judiciary Committee, especially those 
of the Fifty-ninth and the present Congresses. 

It is well, however, to state and to show that the new element above 
discussed has not been admitted into such cases without differences 
among the judiciary and a consequent conflict of authority. While 


54 


LIMITING FEDERAL INJUNCTIONS. 


the tendency to accept it as settled law is clearly evinced in a few 
Federal decisions, a respectable number, if not a majority, of the 
State courts of last resort which have spoken have rejected it. 

Now, let us carry along in adverting to a few State cases what 
Justice Bradley said in Kidd v. Horry, already cited, and remember 
that if I have a legal right to do an act, my motives are absolutely 
immaterial. 

In McCawley Bros. v. Tierney (19 R. I., 255) the court said: 

To maintain a bill on the ground of conspiracy, it is necessary that it should appear 
that the object relied on as the basis of the conspiracy or the means used in accom¬ 
plishing it were unlawful. What a person may lawfully do a number of persons may 
unite with him in d^ing without rendering themselves liable to the charge of con¬ 
spiracy, provided the means employed be not unlawful. 

In Clemmitt v. Watson (14 Ind. App., 38) the court, in passing 
upon the conduct of the defendants in a strike case, said: 

What each one could rightfully do, certainly all could do if they so desired, espe¬ 
cially when their concerted action was taken peaceably, without any threats, violence, 
or attempt at intimidation. 

Chief Justice Parker, speaking for the Court of Appeals in Na¬ 
tional Protective Assn. v. Cumming (170 N. Y., 315), said: 

Whatever one man may do alone he may do in combination with, others, provided 
they have no unlawful object in view. Mere numbers do not ordinarily affect the 
quality of an act. 

In Yegelahn v. Gunter (167 Mass., 92) Justice Holmes, now of the 
Supreme Court, but then a member of the supreme judicial court of 
Massachusetts, in a dissenting opinion said: 

But there is a notion, which lately has been insisted upon a good deal, that a combi¬ 
nation of persons to do what anyone of them lawfully might do by himself will make 
the otherwise lawful conduct unlawful. It would be rash to say that some as yet 
unformulated truth may not be hidden under this proposition. But in the general 
form in which it has been presented and accepted by many courts, I think it plainly 
untrue, both on authority and on principle. 

In Lindsay & Co. v. Montana Federation of Labor (37 Mont., 273) 
the Supreme Court of Nebraska said: 

But there can be found running through our legal literature many remarkable state¬ 
ments that an act perfectly lawful when done by one person becomes by some sort 
of legerdemain criminal when done by two or more persons acting in concert, and this 
upon the theory that the concerted action amounts to a conspiracy. But with this 
doctrine we do not agree. If an individual is clothed with a right when acting alone, 
he does not lose such right merely by acting with others, each of whom is clothed with 
the same right. If the act done is lawful, the combination of several persons to com¬ 
mit it does not render it unlawful. In other words, the mere combination of action 
is not an element which gives character to the act. 

A review of judicial history bearing on the question immediately 
under consideration discloses that this modern doctrine of the Federal 
courts and some of the State courts is a resurrection, to meet the 
supposed necessities of particular cases, of an ancient English decision 
holding that the preconcerted refusal of certain workingmen to con¬ 
tinue their employment, even though an advance of wages was their 
object, constituted a criminal conspiracy, which was an indictable 
offense at common law, although the same act done by only one 
individual would not have been unlawful. (See Rex v. Journey¬ 
men Tailors, 8 Mod., 11.) Of course, the case just cited is not the 
only case of that and the immediately ensuing period holding to that 
view, but a further investigation discloses that most or all of them 


LIMITING FEDERAL INJUNCTIONS. 


55 


were controlled by drastic and harsh statutory enactments of that 
period. Judge Parker called attention to this, and to probable 
neglect of the courts to note the statutory origin of these early Eng¬ 
lish decisions, in the case decided by him, as before cited. 

The next clause required that “the application must'be in writing 
and sworn to by the applicant or by his agent or attorney.” Many 
allegations in complaints and affidavits filed in labor cases are made 
upon information or belief, which is a violation of well-settled rules 
of pleading. 

No provision in this bill is aimed at that reprehensible practice. 
It was probably thought that none was needed, because defendants 
may always make that defect a ground for objection. The defect 
can be seen in bills of complaints placed in the hearings by counsel 
in opposition at the present session. 

The second paragraph of section 266c reads as follows: 

And no such restraining order or injunction shall prohibit any person or persons 
from terminating any relation of employment, or from ceasing to perform any work 
or labor, or from recommending, advising, or persuading others by peaceful means 
so to do; or from attending at or near a house or place where any person resides or 
works, or carries on business, or happens to be for the purpose of peacefully obtaining 
or communicating information, or of peacefully persuading any person to work or to 
abstain from working; or from ceasing to patronize or to employ any party to such 
dispute; or from recommending, advising, or persuading others by peaceful means 
so to do; or from paying or giving to or withholding from any person engaged in such 
dispute any strike benefits or other moneys or things of value; or from peacefully 
assembling at any place in a lawful manner and for lawful purposes; or from doing 
any act or thing which might lawfully be done in the absence of such dispute by any 
party thereto. 

The words “and no such restraining order or injunction” in this 
paragraph limits all that follows. First, the acts mentioned in this 
paragraph which can not hereafter be forbidden must be such only 
as are done in cases where employers and employees, etc., are parties; 
and, secondly, such as are done in cases “involving or growing out 
of a dispute concerning terms or conditions of employment.” 

And the order or injunction shall not prohibit “any person or 
persons from terminating any relation of employment.” 

I have already shown how the bogus element of malicious motive 
has been introduced into strike cases, and there have been some state¬ 
ments by opposition counsel, and consequently some misrepresenta¬ 
tion as to what Justice Harlan actually decided in Arthur v. Oakes 
(63 Fed. R., 310, 317); but really there is no room for a miscon¬ 
struction. He said: 

Tbe rule, we think, is without exception that equity will not compel the actual, 
affirmative performance by an employee of merely personal services any more than it 
will compel an employer to retain in his personal services one who, no matter for what 
cause, is not acceptable to him for services of that character. The right of an employee 
engaged to perform personal service to quit that service rests upon the same basis as 
the right of his employer to discharge him from further personal service. If the 
quitting in the one case or the discharging in the other is in violation of the contract 
between the parties, the one injured by the breach has his action for damages; and a 
court of equity will not, indirectly or negatively, by means of an injunction restraining 
the violation of the contract, compel the affirmative performance from day to day or 
the affirmative acceptance of merely personal services. Relief of that character has 
always been regarded as impracticable. 

Sitting with Justice Harlan at circuit in that case were other 
learned jurists, but there was no dissent from these vie^s. 


56 


LIMITING FEDERAL INJUNCTIONS. 


And, in this connection, I call attention to the priority of Judge 
Taft’s decisions in Moores v. Bricklayers’ Union, in the Thomas case, 
and in the Toledo & Ann Arbor case to this decision of Justice Har¬ 
lan. It would appear, however, that Mr. Taft has never seen or had 
his attention called to the decision in the Arthur v. Oakes case. This 
must be true because the most recent expression of his views are 
directly opposed to those of Justice Harlan as expressed in that case. 

The most extreme opponents of effective legislation, formally at 
any rate,concede great latitude in the matter of severing the relation 
of employer and employee—in other words, the right to strike. But 
they make the concession with reservations and qualifications which 
deprive their concession of nearly all its value. They say to the 
wage earners, “Yes; you may strike for a lawful purpose, but if the 
circumstances give warrant to a belief that you are inspired by ma¬ 
licious motives in striking, then your act of striking falls within the 
definition of conspiracy.” 

This vi,ew was fairly expressed by President Taft in the June num¬ 
ber of McClure’s Magazine, 1909 (p. 204). In that article Mr. Taft 
refers to several cases of injunctions granted by himself when a judge 
into which, for the purpose of giving effect to an injunction greater 
sanction of authority, he had imported from' afar the theory of a 
boycott and strike combined. But he finally reached the strike ques¬ 
tion pure and simple and approved the doctrine of his own early 
decision in which we first meet the strange doctrine that a court may 
inquire into the motives of strikers. 

The twisting and perverting a boycott element into strike cases 
subsequently became a feature of many strike injunctions. It was a 
feature in Paine Lumber Co. v. Neal in the District Court for the 
Southern District of New York, not officially reported, and in Sailors’ 
Union v. Hammond Lumber Co., decided by the circuit court at San 
Prancisco in 1907. 

Opposition counsel, in referring to what Justice Holmes said in Ver- 
gelahn v. Gunter (167 Mass., 92), never omit to mention the fact that 
he was giving the opinion for the minority in that case, but never do 
mention the fact that these have since become the settled law in that 
State. I refer to Pickett v. Walsh (192 Mass., 572), already quoted. 

The next limitation upon the power of the courts to be noticed is 
that whereby they are forbidden to enjoin any person or persons “from 
•ceasing to perform any work or labor.” 

In discussing this provision, Mr. Hines, as representative of the rail¬ 
roads, said: 

Section 10 of the act to regulate commerce imposes penalties not only upon the 
common carrier, which violates provisions of the act, but also upon agents or* persons 
acting for or employed by such common carriers. 

Now, section 10 of the interstate-commerce act contains many penal 
clauses of a similar character. Is each of them to stand as a separate 
argument against any legislation to regulate the issuance of injunc¬ 
tion now and forever ? It would be difficult or impossible ever to 
make any such regulations unless the regulation of interstate com¬ 
merce and of the conduct of carriers were simultaneously abandoned. 
It should be a sufficient answer to all that say that the Constitution 
of the United States supersedes the jurisdiction of courts of equity 
and prohibits involuntary servitude. 


LIMITING FEDERAL INJUNCTIONS. 


57 


Justice Harlan in Arthur v. Oakes said something about certain 
circumstances under which men might be enjoined even from striking. 
Although it was a dictum, I respect it. He clumsily expressed the 
idea which Justice Holmes made clear in Aikens v. Wisconsin (195 
U. S., 205). Any constitutional right may cease to become such when 
embraced within a comprehensive scheme of illegality. And that 
holds true whether or not a labor dispute exists. 

But here we must distinguish between a mere strike and a scheme 
of illegality extending beyond and outside the strike. A strike which 
includes trespassing or destroying property or interfering with pos¬ 
session and use of property can, of course, be enjoined in so far as the 
strike becomes a component part of the conspiracy, but no further. 
On the other hand, if the act in contemplation be merely a strike, the 
motives are immaterial. 

The argument of Mr. Hines is too broad and is easily reducible to 
absurdity by extension to other duties or liabilities of railroad com¬ 
panies. A conclusive answer is that both the companies and the 
employees are subject to penalties,.and the companies are not pro¬ 
hibited from discharging unfaithful employees. 

Human nature can not be dealt with by statutes directing persons 
to continue in incompatible relations or to endure intolerable condi¬ 
tions. The most solemn and formal contract is merely a social treaty, 
and contracts for personal service are in their very nature terminable. 
Specific performance through injunctive process, even if practicable 
at all, would be a cruel remedy. Even with respect to. domestic 
relations injunctions are confined to property rights. 

The next clause with its connection forbids an order or injunction 
to prevent anyone “from recommending, advising, or persuading 
others by peaceful means so to do ”—that is, to terminate the relation 
of employment, or to cease to perform any work or labor. 

This is fully covered by what has been or will be said under otl er 
heads. 

We next have the prohibition against restraining or enjoining any 
person or persons— 

from attending at or near a house or place where any person resides or works, or carries 
on business, or happens to be, for the purpose of peacefully obtaining or communicating 
information, or peacefully persuading any person to work or to abstain from working. 

The objections to this clause are based wholly on misconstruction. 
Indeed, the only way to even plausibly oppose it is to extend its mean¬ 
ing by false construction. Even without the word “peacefully,” as 
here used, the courts would never construe it to authorize an illegal 
act. Counsel in opposition, either innocently or willfully, overlook the 
fact that the formation of a conspiracy is itself an illegal act. And 
as to the difficulty of drawing the line between legality and illegality, 
it is not real, but purely imaginary. At any rate, any practical 
difficulty of discriminating would be no reason for opposing the legis¬ 
lative assertion of a correct legal principle. (Hale v. Henkel, 201 
U. S., 43.) 

Though out of its proper order, it seems more conducive to a clear 
understanding to here call attention to the last clause which qualifies 
and gives its tenor and tone to all the other clauses in the last para¬ 
graph. It will be for the courts to construe the section, and if anyone 
attempts to defend a conspiracy, coercion, threats, or any illegal act, 
however peaceful in form, because the word “peaceably” or “peace- 


58 


LIMITING FEDERAL INJUNCTIONS. 


fully” is used, the court will give effect to the entire section, and read 
the last clause into every part of it as evidence that Congress did not 
intend to sanction a single unlawful act. The last stands as a saving 
clause, though appearing to be scarcely needed. 

Since all the acts and conduct specifically mentioned in section 
266c of the bill are lawful at all times and under all circumstances, 
who will say that it is unlawful for anyone to terminate, for any 
cause appearing to him sufficient, the relation of employer and 
employee ? If conditions become intolerable, one should be, and is 
by law, excused for ceasing to perfornl any work or labor, and surely 
the giving of advice, whether wisely or unwisely, so to cease in per¬ 
formance should have no legal trammels upon it. 

Counsel have striven to place upon these words a construction 
which would authorize a serious invasion of private rights. But 
statutes are construed reasonably and in the light of conditions and 
of any evils existing at the time and which are sought to be remedied. 
If you should examine the court orders that I have called to your 
attention, you would see the evil and need of a remedy. But you 
' can see it in the official reports of cases. In addition to a few mat¬ 
ters which, upon sufficient allegations—whether true or false I need 
not now discuss—the defendants are properly forbidden to do, such 
as trespassing upon private property, they are forbidden to persuade, 
peaceably or otherwise, the employees of the plaintiff to quit or 
unemployed persons not to enter his employ, ana are sometimes for¬ 
bidden to speak to them at all or even to approach them. I do not 
see how it would be possible for any court to construe that clause as 
legalizing the entering of anyone’s house without his consent, or 
transgressing a law, or even violating a social propriety in any resi¬ 
dence or other place. If so construed, it would be unconstitutional 
as relating to private residences, and 1 am sure we do not seek any 
unconstitutional legislation. 

Moreover, outside of, and untouched by this provision, stands the 
police power. In addition to the constitutional right of all persons 
to defend and protect their homes from hostile or even unwelcome 
intrusion, is the right to call for police protection; and, as against a 
complaint or grievance of that sort, there is no pretense that the 
police are not ready to afford protection. Nor can any such showing 
be made, because the police are not only always ready but too willing 
to use their authority and force on such occasions. 

I will in this connection refer for a moment to the attempt of 
counsel for several railroads, Mr. Hines, to give a construction to this 
provision which would enable crowds to assemble on railroad prop¬ 
erty and obstruct transportation. The answer is the same as before. 
There is only one direction in which railroads have ever looked for 
protection against all such interferences, that is toward the police 
power. They must look to and rely upon that hereafter as hereto¬ 
fore. Whether this bill passes or not, injunctions would be as 
ineffectual hereafter as they have been in the past. 

The word peacefully, used here, might have been safely omitted, 
but is inserted in order to remove all doubt. 

The conduct here exempted from injunctions has come to be known 
as picketing. Picketing is undertaken to preserve the status quo 
created by a strike. The act of picketing does not stand on the same 
basis as the strike. Though incidental thereto, it is nevertheless, in 


LIMITING FEDERAL INJUNCTIONS. 


59 


most or all aspects, an independent proceeding affecting the employer 
with whom the strikers have their dispute, indirectly. In picketing, 
whether by peaceful methods or with violence, the picketers deal 
directly with third persons. Hence, it has always seemed that alle¬ 
gations concerning acts done by way of picketing a strike were foreign 
to the issue and totally irrelevant in complaints against strikers. It 
is otherwise of course where the picketing consists in, or amounts to, 
trespasses upon the premises of complainant, or otherwise inflicts 
upon him a direct loss. But I need not discuss cases of picketing 
involving trespass, because trespass disturbs the possession of property 
and is unlawful. Only lawful acts are covered by this bill. 

Here is an excerpt from the opinion in Pierce v. Stablemen’s Union 
(156 Cal., 70). It would read better, and be at least relevant if not 
material, if used in an action at law brought by the party impeded by 
the picketers while in quest of employment. I do not read it because 
I think it good law, but as an instance of perverted and erroneous 
view of the law. It is as follows (p. 79): 

The inconvenience which the public may suffer by reason of a boycott lawfully 
conducted is in no sense a legal injury. But the public’s rights are invaded the 
moment the means employed are such as are calculated to and naturally do incite to 
crowds, riots, and disturbances of the peace. And as illegally interfering with his 
business the employer may justly complain when the rights of his nonunion employee 
and the rights of the public are thus invaded. 

It is the last sentence to which I take exception. 

In picketing cases, it is obvious that unless the picketers resort 
to trespasses on the premises of the complainant the conduct of the 
defendants complained of, if unlawful, is without essential connection 
with avowed purposes of the union; while if peaceable, amounting to 
no more than persuasion, the picketing should be exempt from 
injunctive restraint. Nevertheless, Federal, and some State, courts 
of equity have on several occasions exercised a power herein which 
was virtually police power and have gone even further in coercion 
and restriction than the police would be warranted in going. 

That the act of picketing is distinct from the dispute proper, often 
governed by different principles, and requiring separate judicial 
treatment, was recognized by the Supreme Court of California in the 
case just referred to of Pierce v. Stablemens’ Union. And the court 
in that case, while affirming an order granting an injunction, placed 
in the forefront of the opinion the assertion previously quoted, which 
reads rather strangely and appears somewhat out of place in an 
equity case brought against an organization of wage earners or an 
association formed for any other legal purpose. 

The term “picketing” has been applied in all that class of cases 
where a party complains that he was being injured or his business 
was being interfered with by efforts of members of unions to prevent 
the places which they had vacated being filled or held by persons who 
sought employment or who might otherwise be employed in their 
stead. In some instances picketing has been resorted to in further¬ 
ance of a boycott, but such are exceptional. 

In the category of picketing cases are the cases where the picketers 
are also strikers or are instigated by strikers, even where such strikers 
have term contracts with their employers, but have found conditions 
of employment outside the express terms of employment intolerable, 
or have found other pretexts lor terminating the service, and never¬ 
theless attempt to prevent the employment of others in their stead. 


60 


LIMITING FEDEKAL INJUNCTIONS. 


Whatever we may think of the morality of such conduct, it is evident 
that, in the final analysis, the jurisdiction in equity has no other basis 
than a theory that the employer has a vested property interest in the 
unattached labor of the vicinage. 

There have been many injunctions granted in such cases. Hitch- 
man Coal & Coke Co. v. Mitchell, Pierce v. Stablemen’s Union, Sailors’ 
Union of the Pacific Coast v. Hammond Lumber Co., Adams v. 
Columbia Typographical Union, and Kansas & Texas Coal Co. v. 
Denny were picketing cases. Pierce v. Stablemen’s Union (156 
Cal., 70) may be selected as a typical case. The court forgot or com¬ 
pletely ignored the distinction between legal and equitable jurisdic¬ 
tion, as is evident from language found in the opinion (p. 78), where 
it is said: 

The two classes of persons to whom we have adverled and whose rights necessarily 
become involved where a picket or patrol is established are: (1) The rights of those 
employed or seeking employment in the place of the striking laborers; and (2) the 
rights of the general public. 

Now, unless the employing capitalist has a property interest in 
mere labor power, holding true even in the absence of a contract of 
employment with the persons whose labor he requires, who are total 
straiigers to the immediate dispute and whose names and identify 
may be unknown, it is impossible to find a basis for the jurisdiction 
in such cases. 

And without such interest, all else being conceded, it is. apparent 
that the only persons injured, in legal sense, by the acts or conduct 
on the part or picketers complained of are the persons themselves 
whom he otherwise might be able to employ but who are never made 
parties to the suit, at any rate in no case thus far reported. 

Here, then, we have an additional reason for the provision in the 
clause we are now discussing which forbids the issuance of an injunc¬ 
tion or restraining order against peaceful persuasion in furtherance 
of a labor dispute. The same defect of jurisdiction exists, of course, 
where the picketing amounts to threats of violence, but it is thought 
that labor will be sufficiently safeguarded if the bill be worded in the 
form as presented, that part to be considered in connection with other 
parts. 

Were it not for a popular prejudice or perverted view, amounting 
when found in the judicial mind to a class bias, the applications for 
injunctions in cases of mere picketing would never be entertained for 
an instant. 

Competition with its strifes, hardships, sacrifices, and losses is the 

E rice we pay for liberty. There is no end or'cessation of competition 
etween those engaged in what in restricted sense we designate as 
“business.” Overpersuasion, misrepresentation, deception, all forms 
of overreaching, with a frequent resort to coercion and force, con¬ 
stitute what latter-day progressives of all parties call “unfair com¬ 
petition.” But these have ever been incidents of competition and 
probably will always be found, anything Congress or other legisla¬ 
tures or the courts, may do to regulate business to the contrary 
notwithstanding. But the competition between labor and capital 
each for its share of the rewards of industry, and between persons 
seeking employment, which is also limited, as is trade, goes on like¬ 
wise, characterized by the same regrettable but inevitable incidents. 


LIMITING FEDERAL INJUNCTIONS. 


61 


Those who criticize and condemn the efforts of workingmen at 
organizing and striving in an organized capacity to prevent their 
places being taken by others, justifying the use of injunctive process 
against them, assert the right of every man willing to labor to obtain 
employment. That whole contention is based on the false assump¬ 
tion that there is employment in the w^orld for every man desiring 
and competent for it. The sad truth is otherwise, and the concen¬ 
tration of industry in corporate form with the more efficient use of 
machinery on a large scale intensifies and constantly extends the 
evil of nonemployment . 

The next clause reads thus: 

Or from ceasing to patronize or to employ any party to such dispute. 

The act which the courts are by these words forbidden to enjoin 
has been sometimes called the “primary boycott.” The cases in 
which illegality attaches to the conduct thus described arises from 
conspiracies and must extend beyond the original parties. It is then 
called a “secondary boycott.” The whole subject is more con¬ 
veniently discussed under the next head. 

We now come to the clause reading, “or from recommending, 
advising, or persuading others, by peaceful means, so to do”—that 
is to say, no party to a labor dispute shall be enjoined from recom¬ 
mending, advising, or persuading others by peaceful means to cease 
patronizing or employing any party thereto. 

A preliminary question to be answered is, Who are the original 
parties to a dispute concerning terms or conditions of employment? 

This is a question which if fully exploited would require repetition, 
and overlapping much that has been already said. But in order to 
clear up the fogs and mists raised by much misstatement tending to 
establish the impression that this clause legalizes, or at least forbids 
injunctive relief against secondary boycotts, the question of who are 
and who are not the parties to a dispute resulting in a boycott or 
blacklist should be here answered, if possible. In answering this 
question, we have the answer to the question of the distinction between 
the primary and secondary boycott. 

Some courts have denied the existence of any real difference be¬ 
tween a primary and secondary boycott; for instance, the Supreme 
Court of California, in Pierce v. Stablemen’s Union (156 Cal., 70). I 
think myself that it is unwise statesmanship on the part of our judi¬ 
cial lawmakers to make any such distinction when they assume the 
task of enacting special laws for special cases in the form of injunc¬ 
tions. But the courts do recognize a technical distinction, and this 
bill follows the courts in that respect. So that, regardless of any per¬ 
sonal views, I must follow the lines of the bill conforming to the 
views of the courts. 

Here is an illustration of what I understand to be meant by a pri¬ 
mary boycott. One hundred men strike, we will say, a stove and 
range company—the metal polishers’ union. They are parties to that 
dispute. They go all over the United States and advise or persuade 
.its customers to cease trading with it. They have that right by this 
bill; they have that right now. That is the primary boycott. 

Now, one of these firms having refused to cease buying of the stove 
and range company, they institute a boycott against it. That is a 
secondary boycott.* It is not touched by this bill, because such firm 
so boycotted is not a party to the dispute. 


62 


LIMITING FEDEKAL INJUNCTIONS. 


This provision bears alike on employers and employees. No 
employer can be enjoined from ceasing to employ or from peaceably 
recommending and persuading others not to employ any party to a 
labor dispute. It withholds from employees the injunctive remedy 
against the so-called blacklist, which is in vogue to a far greater extent 
than is the boycott. So the clause awards to employers and em¬ 
ployees equal treatment. Now let us take any employer. He has a 
dispute with employees and discharges them and recommends, 
persuades, and advises other employers not to employ them, and if 
they follow his advice he has blacklisted them. 

It is my belief that this corresponds exactly to what some courts 
call the primary boycott, and that was held even by Judge Taft to 
be legal. 

But, now, suppose one of these other employers does not see fit to 
follow his advice, and in order to enforce compliance he gets others 
to join him in some retaliatory action toward the persons whom he 
has so advised. That would be going outside the dispute and he 
could be enjoined. The wrong might not consist in blacklisting, but 
that is immaterial. The essential idea is that it is a wrongful act and 
that two or more are acting in concert to perpetrate it. They could 
all be enjoined, anything in this bill to the contrary notwithstanding. 

Now, revert to the employee again. He ceases to patronize A, with 
whom he has a dispute, and recommends others to also cease. If 
they cease, well and good; he is within his rights; but if B, one so 
advised, does not see fit to cease and the employee joins others in a 
boycott of B, that is a new quarrel. It can, notwithstanding any¬ 
thing in this bill, be enjoined, waiving for present purposes the ques¬ 
tion of property rights. 

I will now give a clear instance of the secondary boycott of a 
slightly different kind. It is a very common instance which, how¬ 
ever, we never hear of in the courts. There is, we will say, a manu¬ 
facturer and dealer in stoves at St. Louis. It is, we will s$y an excel¬ 
lent article and could succeed on its own merits. But the company 
is tempted by a scheme for greater profits through exclusive markets 
and higher .prices. Taking advantage of the popularity of its brand 
of goods in a wide section, it makes exclusive contracts with the stove 
dealers throughout that section, especially in the smaller cities and 
towns that these dealers shall put up the price of this stove and 
refuse to handle the stoves of that manufacturer’s chief competitor 
in the manufacture of stoves, the advance on the usual and fair 
price to be divided between the manufacturer and dealer. 

Now, that is an arrangement in restraint of trade; at any rate, the 
general scheme is a combination in restraint of trade. 

So far we have only what may also be termed a primary boycott 
directed against the competitor. But suppose the agreement con¬ 
tains a stipulation that in case the dealer buys any goods from any 
other manufacturer the stove maker will refuse to sell him any more 
stoves on any terms, and the agreement is violated in that respect 
and the threat is carried out ? There you have the secondary boy¬ 
cott. The agreement is itself a conspiracy in restraint of trade, 
because hurtful to public interest. It is also a conspiracy because 
attempting to sanction a secondary boycott to be inaugurated by 
one of the parties against the others in the event that one of them 
does not persist in performing his part in the primary boycott. 


LIMITING FEDERAL INJUNCTIONS. 


63 


These are between business men. The country is overlaid with 
them, overlapping each other in all directions. They seldom or 
never come before the courts in private litigation, and, although 
high prices are extorted through such arrangements, public officers 
ignore them. 

The view I have here taken of the question of what constitutes 
illegality in strike and boycott cases is that advanced by the Supreme 
Courts of Massachusetts, New York, Rhode Island, Indiana, Mis¬ 
souri, Montana, California, one or two other States, by Judge Sanborn 
in the case of Allis, Chambliss Co. v.lron Holders’ Union (166 Fed. R., 
50), and the circuit court of appeals of the second circuit as expressed 
by Judge Noyes in National Fireproofing Co. v. Mason Builders’ 
Association. By these courts the law governing strikes and boycotts 
is simplified, and the turning point of legality or illegality is found not 
in the act of striking or boycotting per se but in the means employed, 
or intended to be employed to carry it on. Of course workingmen 
may actually conspire, in criminal sense, as may others. But this 
bill leaves conspiracies untouched. 

The provisions of this bill conform to these more recent, more 
humane, and more enlightened views. A few illustrative cases 
additional to those already discussed will be now briefly referred to. 

In Jacobs v. Cohen (18 N. Y., 207, 211) the court, speaking of a 
strike, said: 

That, incidentally, it might result in the discharge of some of those employed, for 
failure to come into affiliation with their fellow workmen’s organization, or that it 
might prevent others from being engaged upon the work, is neither something of which 
the employers may complain, not something with which public policy is concerned. 

The Supreme Court of the same State, in Mills v. United States 
Printing Co. (99 App. Div., 605; N. Y. Supp., 185, 190), said: 

There is a manifest distinction, well recognized, between a combination of work¬ 
men to secure the exclusive employment of its members by a refusal to work with 
none other, and a combination whose primary object is to procure the discharge of an 
outsider and his deprivation of all employment. In the first case, the action of the 
combination is primarily for the betterment of the fellow members. 

In the second case, such action is primarily “to impoverish and crush another” by 
making it impossible for him to work there, or, so far as may be possible, anywhere. 
The difference is between combination for welfare of self and that for the persecution 
of another. The primary purpose of one may necessarily but incidentally require 
the discharge of an outsider; the primary purpose of the other is such discharge and, 
so far as possible, an exclusion from all labor in his calling. Self-protection may 
cause incidental injury to another. Self-protection does not aim at malevolent 
injury to another. 

It will be seen that Judges Loring, Noyes, Sanborn, Holmes, 
McKenna, Holloway, Parker, and their associates, in the respective 
courts, refused to be moved by the pathetic appeals of counsel that 
some corporation or firm employing labor on a large scale was about 
to be financially ruined. They say that the rights of each of the 
many, though financially small in comparison, must be preserved 
though great losses may result to an individual; that injury inflicted 
from the exercise of a lawful right is damnum absque injuria. 

It is impossible for the Federal Government as now administered 
to consistently condemn any form of the boycott. For good and 
sufficient reasons, no doubt, the Government has during the last four 
years prosecuted 370 boycotts against seed dealers, and is contem- 


64 


LIMITING FEDERAL INJUNCTIONS. 


plating an extension of its boycott system. The Washington Star 
of July 27, 1912, contained a news item reading in part as follows: 

Promoters of fake orchard, irrigation, timber growing, and similar farming schemes, 
it is announced, can take notice that they are likely to be registered in a list of fraudu¬ 
lent companies now being prepared by the Department of Agriculture. The depart¬ 
ment is making a register for office reference only, but it is intended to protect in¬ 
vestors who are wise enough to make inquiries before sinking their money in some 
advertised land scheme. The subject is rather a delicate and difficult one to handle, 
for Congress has made no provision for the department issuing a blacklist. 

Congress did this some years ago in the case of merchants selling adulterated seeds. 
The Secretary of Agriculture was directed to buy in the open market a certain number 
of seed samples, mostly forage plant seeds, annually. These were to be analyzed and 
the names of the venders and the results of the analyses published. 

This law is still in force, and the list is published each year. The analyses were 
revelations. Many of the samples were adulterated with 50 per cent of dirt, trash, 
and weed seed. A few of the samples were almost pure, and others had none of the 
forage seeds supposed to be sold at all. The publication of the names in the blacklist 
was remarkable, and few of the venders have ever been caught twice. 

It will be observed that the Star, without the remotest semblance 
of propriety, places these crusades, designed to deprive so-called 
business men of their customers, in the category of blacklisting. 

It is practically impossible to discuss the sociological and legal 
principles governing the strike and boycott and their involvements of 
organized labor fairly and intelligently without taking a risk of being 
misunderstood, misconstrued, and misrepresented. In the first place, 
the boycott is as defensible as the strike and they are equally sub¬ 
ject to unmeasured and persistent condemnation by those not having 
the workingman’s point of view. To say that men of a large class, 
such as wage earners of the country, may organize into unions, 
enjoy the right to freely speak and print their views, advocate social, 
industrial, and political changes, advance their collective and distinc¬ 
tive as well as their individual interests, peaceably assemble without 
limit for any and all lawful purposes, which necessarily includes the 
exercise of rights constitutionally guaranteed, and yet to assert a 
power in any branch of government to prescribe how or when or to 
what effect they shall organize, for what purpose they shall meet and 
commingle, what they shall say the one to the other relevant to their 
common or class interest, is not only unjust and dangerous doctrine, 
but partakes of the chimerical and impracticable. 

The spirit of self-assertion and impulse to resent wrong, real or 
fancied, is too generally prevalent among a self-governing people to 
be controlled or subdued, even if all the courts in"the country should 
devote their time exclusively to the attempt. How is it possible for 
courts of equity to deal with the innumerable, incessant, and inter- 
Ininable conflicts and competitions at work in every city, town, vil¬ 
lage, and neighborhood ? If those between the industrial classes are 
to have the espionage and arbitrage of the courts, why not those be¬ 
tween communities, nationalities, and religious denominations ? 
These questions answer themselves. We need not defend the morality 
nor even the legality of strikes and boycotts, even if there were any¬ 
thing in this bill calling for such defense. I go to the point of saying 
that where there is no possible equity there is no possible jurisdiction, 
and since the exercise of the assumed jurisdiction without the inflic¬ 
tion of more evil than good is inconceivable, it is well that it should 
cease. 


LIMITING FEDEKAL INJUNCTIONS. 


65 


To properly understand the point and application of the cases 
used in the report of the House committee, the fact must not be 
overlooked that after a labor dispute has arisen and the parties are 
strangers, in legal sense, that being the only conditions under which 
the provisions of the bill are applicable, a boycott consists wholly 
and exclusively of words spoken or written. If the parties speak: 
truly, of course they are immune from legal consequences. If they 
speak falsely, of course, an action for slander or libel lies, or a prose¬ 
cution may be instituted in most jurisdictions, even for slander. 
But to permit a court of equity to make a special prohibitory law 
for the case, in advance of ascertainment of the facts otherwise than 
before a jury with the privilege of cross-examination of witnesses, 
with penal consequences for disobedience, is, of course, to arbitrarily 
set aside all bills of rights and constitutional guaranties of free speech 
and free press. And this has often been done by one man acting 
without responsibility, exercising an unlimited discretionary power. 
In Dailey v. San Francisco Superior Court (112 Cal., 94; 32/L. R. A., 
273) the Supreme Court of California, sitting in banc, issued writs of 
certiorari and prohibition quashing an injunction which had been 
issued by the superior court. Referring to the provision in the Cali¬ 
fornia bill of rights, the court said: 

The wording of this section is terse and rigorous and its meaning so plain that con¬ 
struction is not needed. The right of tfre citizen to freely speak, write, and publish 
his sentiments is unlimited, but he is responsible at the hands of the law for an 
abuse of that right. He shall have no censor over him to whom he must apply 
for permission to speak, write, or publish; but he shall be held accountable to the 
law for what he speaks, what he writes, and what he publishes. It is patent that 
this right to speak, write, and publish can not be abused until it is exercised, and 
before it is exercised there can be no responsibility. The purpose of this provision 
of the Constitution was the abolishment of censorship, and for courts to act as censors 
is directly violative of that purpose. 

The next clause to be noticed is that which, taken with its con¬ 
nection, forbids .the courts to enjoin any person or persons “from 
paying or giving or withholding from any person engaged in such 
dispute any strike benefits or other moneys or things of value .’ 1 

This, like the clauses relating to the withdrawal of patronage 
and employment, is limited to the parties to the dispute. 

To such extremes are the opponents of the bill driven that they 
draw on their imagination and suggest all sorts of impossibilities. 
For instance, Mr. Monaghan (p. 83) says: 

In such an event, a labor union engaged in controversy with an individual manu¬ 
facturer is justified not only in persuading and inducing in a peaceful manner the 
the employees of other institutions, which have beneficial business intercourse with 
the foundry struck, to leave this work, but in addition is permitted, without the pos¬ 
sibility of equity interference, to offer or give bribes of money or things of value to 
the employees of a customer who continues to make use of the products of the struck 
foundry in order to injure dealer or customer who refuses to join in the boycott; men 
who are members of labor organizations may approach the clerks or the employees of 
an establishment that is making use of the products of the struck foundry and offer 
them bribes of money or things of value for the purpose of inducing them to quit work 
for that employer, or for the purpose of doing any other thing that might ordinarily 
assist them in that strike, provided no violence or threat of violence is used. The 
provision even enters into the transportation of goods by freight and into matter of 
inducement by bribe on the part of labor organizations to procure the employees of 
interstate carriers to refuse to handle the freight belonging to the struck institution. 

Here we see how obsessed have become the minds of men engaged 
in big business and their attorneys, and to what an extent they have 
come to rely on injunctive processes as weapons with which to defeat 

S. Doc. 944, 62-2-5 


66 


LIMITING FEDERAL INJUNCTIONS. 


labor in its struggles for better wages and conditions. They look to 
it as a remedy for all conceivable evils. It is true that labor organi¬ 
zations might resort to bribery to accomplish their ends; it is possible 
that in some rare instance they have already. But to state it very 
conservatively, that is not the form or kind of bribery and corruption 
of which the public complains or upon which its attention has been 
fixed, either in former or more recent times. And whoever before 
heard an injunction suggested as affording any protection against it? 

There are, however, more conclusive answers which will readily 
suggest themselves to all who are not blinded by their viewpoints, as 
is Mr. Monaghan and most of the others who have appeared in 
opposition. 

Other strenuous efforts have been made in argument to show that 
even this harmless liberty of paying strike benefits might be per¬ 
verted and abused. I suppose any man with an abundance of cash 
could aid any other lawful organization to which he belonged in carry¬ 
ing out its purposes or receive assistance from it to the same end 
without his right to do so being questioned. But when the right of 
an association of workingmen to do so is sought to be recognized 
learned counsel are sent here by employing corporations to deny the 
right and to denounce its exercise as something fraught with danger. 
The question as to the lawfulness of the act is settled, as I agree it 
should be settled, by the Federal courts themselves. In A. S. Barnes 
& Co. v. Barry (157 Fed. II., 883) it was held without dissent or 
qualification that— 

* * * The strike-benefit fund is created by moneys deposited by the men with 
the general officers for the support of themselves and families in times of strike, and 
the court has no more control of it than it would have over deposits made by them in 
the banks. 

I note that Mr. Hines took care to call the attention of the com¬ 
mittee to two State cases—A. R. Barnes & Co. v. Chicago Typographi¬ 
cal Union (232 Ill., 424) and Reynolds v. Davis (198 Mass., 294),— 
but holding contrary to my contention, but neglecting to cite this 
Federal case, which also accords with latest English authorities, 
cited in House committee report. 

The next clause to which I direct attention is this, u or from peace¬ 
fully assembling at any place in a lawful manner and for lawful pur¬ 
poses/’ This means of course assemblages where they have the right 
of assembly in their usual places of meeting, or on grounds where the 
right is public, or on premises where they have permission of the owner 
or person in possession. Any other assembling must be by ovecoming 
resistance and in addition to being unlawful, could not be peaceful. 

It is strange that any one can be found to criticize this clause. And 
yet Mr. Monaghan, as the basis, or major premise, for opposition, 
makes this very correct, but totally irrelevant statement (p. 83): 

What “lawful purposes” are is modified by what goes before. It is not now con¬ 
sidered lawful for a body of men to assemble upon the premises of a struck manufac¬ 
turing establishment nor in the immediate vicinity of a struck manufacturing estab¬ 
lishment for the purpose of persuading the men in that establishment to quit their 
work. 

And in Mr. Hines’s statement to the committee fears are expressed 
that this may be held, or may be used as a cloak for trespasses on 
railroad property. Though there may possibly have been instances 
of attempts at such assemblages he failed to mention any. But rail¬ 
roads have never relied upon injunctions as a protection against them 


LIMITING FEDERAL INJUNCTIONS. 


67 


and never will, no matter what may be the state of the law. They 
have found the police forces their sole and safe and adequate reliance. 

I now have reached the final clause in the bill, being the concluding 
clause of section 266c, and reading thus: “or from doing any act or 
thing which might lawfully be done in the absence of such dispute by 
any party thereto.” 

# Though this has been discussed at some length in another connec¬ 
tion, a brief and more critical view of it may be here properly 
expressed. 

The great truth that the legal quality of an act is never changed 
by the existence of a labor dispute seems not to have dawned upon, 
or, at any rate, not to have impressed the opposition; nor its twin 
truth, that to thinking otherwise is due many abuses of the injunctive 
process. As has been conceded in the statement of Mr. Davenport, 
and as seems to be the view of the subcommittee, the word “law¬ 
fully,as here used, “colors” the entire paragraph and must, of 
course, apply to each case as it arises. Nor with that word used, as 
here used, could the interpolated construction apply anywhere. 

PROVISIONS OF ANTITRUST ACT NOT AFFECTED. 

Considering the environment and business methods of those respon¬ 
sible for the opposition, their solicitude for the safety and preserva¬ 
tion of the antitrust act is surprising and unaccountable. 

The bill does not modify or touch the antitrust act. The reason 
is simple. It does not withdraw the injunctive process from any 
unlawful act. No one can claim that it touches in any way any 
form of contract in restraint of trade, or any other description of 
contract, except, perhaps, contracts for personal service. And con¬ 
tracts for personal service are not within the act, because essentially 
local. (Williams v. Fears, 179 U. S., 270.) What else does the 
antitrust act reach ? Why, conspiracies and combinations in restraint 
of interstate commerce. 

Conspiracy and combination, within the meaning of that act, mean 
almost the same thing and are affected exactly alike. For the pur¬ 
poses of this bill they are exactly identical, in that they are both 
excluded from its operation. . To form a conspiracy, to carry on a 
nation-wide boycott, as in the Loewe v. Lawler case, could not be 
lawfully done either in the presence or absence of a trade dispute, nor 
if the Sherman Act had never been passed. 

The antitrust act is a penal statute. The civil remedy by injunction 
is superadded. It is an unusual and exceptional use of injunctive 
process. Congress can, of course, provide any means and instru¬ 
mentalities, within the Constitution, which it sees fit. I have never 
denied to Congress the power to provide that or any other remedy, 
even for the prevention of injuries to personal rights which are com¬ 
mitted to it to protect. For such purpose it can confer extraordinary, 
even unheard-of, jurisdiction upon the courts. But Congress has 
never given the courts jurisdiction to protect by injunction a per¬ 
sonal right other than that conferred in the antitrust act. Nor is 
that confined to the protection of any individual, but of the public 
at large. 

A private party who has sustained special injury by a violation of the Federal anti¬ 
trust act may sue in a federal court for injunction under the general equity jurisdiction 
of the court, where, by reason of diversity of citizenship of the parties, the court has 
jurisdiction of the suit (Bigelow v. Hecla Min. Co., 155 Fed. R., 869.) 


68 


LIMITING FEDERAL INJUNCTIONS. 


In this case the whole question was reviewed, and the conclusions 
reached do not conflict with decisions denying general jurisdiction 
to grant relief to private parties by injunction under the antitrust 
act. 

In Loewe v. California Federation of Labor (139 Fed. R., 71) was 
involved a boycott by a local association of Triest & Co., a San Fran¬ 
cisco firm. Jurisdiction was exercised solely on the ground of diverse 
citizenship, and neither the antitrust act, nor interstate commerce, 
was mentioned. The order went only against local persons. 

This bill leaves the law of conspiracy untouched. Mr. Davenport 
gives an illustration of how, according to his view, one of these lawful 
acts mentioned in the respective clauses of the last paragraph of 
section 266c might be illegalized. His illustration is striking and 
flawless, and the doctrine of Aikens v. Wisconsin (195 U. S., 205) is 
unassailable. But as- already fully shown, the formation of a con¬ 
spiracy is itself an independent and distinct act, legally isolated from 
any act mentioned in the bill. 

SPECIAL PLEAS ON BEHALF OF RAILROADS. 

It seems proper before closing to notice some special pleas inter¬ 
posed and extraordinary arguments advanced by attorneys repre¬ 
senting the principal railroads of the country. 

No one appreciates more than I the value to the public of railway 
service as well as the necessity of having the requirements of the 
interstate commerce act complied with. But is it necessary, in order 
to secure efficient service and compliance with the law, that we 
leave in the hands of the judiciary those arbitrary police regula¬ 
tions which enable them, every time a labor dispute arises, to com¬ 
pletely tie the hands of railway employees and drive them hither 
and Jnither, like so many cattle ? I tnink not. In fact, I know it is 
not. And even if I thought otherwise, I would rather see the Govern¬ 
ment take charge with an armed force when an extensive strike 
occurs, protecting alike the property of the railroads and the liberties 
of the strikers until the trouble would be adjusted, than see exercised 
the despotic powers which these gentlemen claim, for the Federal 
courts. 

Their objections to the various provisions of this bill resolve them¬ 
selves into complaints as to relative convenience of the present vogue 
in comparison with the inconvenience to result if the abuses and 
usurpations of the judiciary are discontinued. It would not change or 
modify my view and my attitude even if I thought that every railroad 
employee in the country was satisfied with the present condition in 
which, as against the power now exercised by some of the courts, they 
are as utterly helpless to assert themselves to the full limits of their 
rights as if they were subjects of an absolute olden-time monarch. I 
would not give my consent to a despotic tribunal, rearing its head, 
casting its shadow over the land, exercising legislative and executive 
powers, even if I thought those whose liberties are imperiled would 
consent to be so degraded and enslaved. 

I shall, for the most part, ignore all those recitals of the duties of 
carriers as to rates and prompt service to shippers. The Govern¬ 
ment has complete control of rate matters, and I feel sure that it will 
not oppress the railroads on account of any unavoidable failure to 
comply with the law. As to liabilities incurred by the carriers to 


LIMITING FEDERAL INJUNCTIONS. 


69 


shippers, the latter have always been reasonable. At any rate, 
liberty and the constitutional rights of men have been seldom before 
so coolly and deliberately measured in argument by dollars and cents. 

Mr. Hines calls attention ta the fact that certain duties prescribed 
by the interstate-commerce act are the very duties interfered with 
by the strike of 1894, which, I believe, has gone into history bearing 
the name of the “Debs strike.” That strike, occurring 18 years ago 
and standing unique and alone, has been harped on in every argu¬ 
ment and in almost every phase of all the arguments in opposition. 
Its incidents and certain phases of it, which no one more seriously 
regrets than do the railway employees of the country, have been 
worked into this discussion for all they were worth. 

In fact, they have been overworked, because what then occurred as 
a basis of court proceedings and military action finds neither equitable 
protection nor legal sanction in any part or provision of the bill, nor 
m the bill as a whole. Those acts constituted, according to all the 
definitions, one entire boycott and strike combined. It was what all 
who make such a distinction designate as the secondary boycott. 
Sufficient record may be found in 158 United States, 564, to show that 
it was a boycott of the Pullman Co., an industrial corporation present¬ 
ing all the phases of the Leowe v. Lawlor case. The latter did not 
interfere with the actual movement of commerce, though held to be 
made up of a series of secondary boycotts. The Debs case, on the 
other hand, was not peaceful, but involved violence and threats. It 
was not attended with any regard for the rights of others, but was 
attended with trespasses on private property, the burning of cars, 
disabling of rolling stock, and the like. 

Notwithstanding the attempts here made to use the Debs case as a 
precedent of value, there never was a clearer case for an injunction for 
the protection of property rights. 

Mr. Hines gives the committee the benefit of extracts from a 
socialistic sheet published in East St. Louis, and then recites various 
acts of vandalism, each of which was a trespass on property as well 
as a disturbance of possession. 

Why didn’t he make a manly and outright admission that he 
wishes the power left with the courts to enjoin peaceful persuasion, 
peaceful picketing, lawful assemblages, and all the other fundamental 
rights specified in the bill. With the power in one hand to collect 
not mere millions but billions of revenue in the form of excessive 
freights and fares, he objects to relinquishing any part of the power 
held in the other hand to subjugate and enslave 1,600,000 railway 
employees with usurpatory blanket injunctions. Again and again 
he reverts to the public responsibilities of carriers under the inter¬ 
state commerce act as if the labor which keeps all the wheels turning 
were a negligible quantity in railroad operation. Does he wish to 
convince Congress and the public that regulation is fraught with 
greater evils than benefits ? Is it his purpose to prove that the time 
foretold by Mr. Bryan has already come; that regulation has already 
proven a failure and the time for complete Government control or 
ownership is at hand ? His arguments point more directly that way 
than to any defects or excesses in this bill. 

I shall not have time to-day for a minute criticism of Air. Hines’s 
argument. If I did, I would find something to criticize in almost 
every paragraph. 


70 


LIMITING FEDERAL INJUNCTIONS. 


I will also revert to three cases which have been referred to time 
and again and overworked in argument by the opposition. 

To see that the Debs case in the lower court can not be properly 
used in the discussion of- any provision of this bill, in view of estab¬ 
lished legal principles already discussed, it is only necessary to look 
at the case itself. The gist of the case is stated in the eleventh para¬ 
graph of the syllabus (64 Fed. Rep., 725) in these words: 

Where defendants, directors, and general officers of the American Railway Union, 
in combination -with members of the union, engaged in a conspiracy to boycott Pull¬ 
man cars, in use on railways, and for that purpose entered into a conspiracy to restrain 
and hinder interstate commerce in general, and, in furtherance of their design, those 
actively engaged in the strike used threats, violence, and other unlawful means of 
interference with the operations of the roads, and, instead of respecting an injunction 
commanding them to' desist, persisted in their purposes, without essential change of 
conduct, they were guilty of contempt. 

In the principal case out of which this contempt proceeding grew 
the defendants were charged, as is shown in this case, with taking 
possession of, firing upon, and setting fire to cars. (See 64 Fed. R., 
728.) 

As further showing the basis of the jurisdiction exercised in that 
case, I refer to a synopsis of the points and authorities presented by 
counsel and relied upon, the same being one ground of the decision of 
the court. The synopsis is, in part, as follows: 

(1) Any interference with property in the custody of the court is 
a contempt (citing authorities). (2) Such, also, is any act of inter¬ 
ference by force or threats with employees in charge of such property 
(citing authorities). (3) Aiding, advising, or persuading another to 
do a forbidden act or even permitting another whose action can be 
controlled to do the forbidden act is contempt (citing authorities). 

But another ground of the jurisdiction was that the conduct of all 
the defendants in combination constituted a public nuisance. I will 
not attempt an elaboration of the exceptional jurisdiction based upon 
the suppression of purprestures and nuisances. 

It is fully expounded both by Judge Woods in this case and by 
Justice Brewer in the Supreme Court. (158 U. S., 586, 589.) 

In Bitterman v. Louisville & Nashville Railroad Co. (207 U. S., 
205) the lower court had enjoined ticket brokers from dealing in 
nontransferable railroad tickets on the ground that they were thereby 
inducing the holders of such contracts (tickets) to violate their con¬ 
tracts. Of course, the rights secured by enforceable contracts, such 
as these were, are property rights, and it did not require this decision 
to so establish so well-known a principle. And the basis of the juris¬ 
diction dwelt upon by the Supreme Court was the property interest 
which the railroad company retained in the tickets by virtue of the 
forfeiture clause, expressly held by the court to constitute a property 
interest. 

Since the expression of Justice Harlan in the course of a rhetorical 
opinion to the effect that the right of a corporation to make contracts 
is a property as well as a personal right is no authoritative value in 
a discussion of this bill, I shall not devote the time and labor which 
would be necessary for the purpose to criticize it. Nor shall I pay 
more than a mere passing notice to another expression in his tremen¬ 
dously brilliant discourse. He also said: 

The right of a person to sell his labor upon such terms as he deems proper is, in 
its essence, the same as the right of the purchaser of labor to prescribe the conditions 
upon which he will accept such labor from the person offering to sell it (p. 174). 


LIMITING FEDERAL INJUNCTIONS. 


71 


Now, the learned justice’s conception of labor is that of a com¬ 
modity in the market. And if it can be kept on tap, or canned up 
until a purchaser appears it is indeed difficult to see why a breach of 
contract to deliver it can not be enjoined; but he proceeds immedi¬ 
ately to say: 

So the right of the employee to quit the service of the employer, for whatever 
reason, corresponds with the right of the employer to dispense with the services of 
such employee. 

And in support of this very correct statement he cites numerous 
authorities, among which is Arthur v. Oakes, decided by himself. 

Now, I will show the worthlessness and irrelevancy of all these 
cases by the words of Mr. Davenport, who made most frequent and 
persistent use of them: 

Under the decision of the United States in this Adair case, and supported by a very 
large number of decisions everywhere, those things that in the Pearre bill were sought 
to be declared not to be property and property rights and would be covered by the 
first clause of this bill [section]. So that you could go into court and seek to protect 
your rights under the first clause of this bill [section]. 

But the bill goes on, then, to say that a certain class of acts attacking your property 
right shall not be enjoined against, and this is the way it reads. 

Senator Sutherland. May I interrupt you again? I had understood—I do not 
know where I saw it or where I heard it—that it had been claimed that the provision 
in this bill now pending, with reference to property rights, would not include the 
right to do business. I wondered what the foundation of that was. 

Mr. Davenport. In construing this bill 1 suppose the courts would say that what 
the courts have said time out of mind are property rights would be covered by that 
first section, and that when it says that “unless to prevent irreparable injury to prop¬ 
erty or to a property,” whatever fell within that definition of property would be 
covered by the terms. (P. 22, pt. 3, Senate hearings.) 

As I stated the other day, if this bill were passed, the law would still be unchanged 
as to what is lawful and what is unlawful. Its sole effect, and, as I understand it, the 
sole purpose of those gentlemen who took the responsibility of recommending it to the 
House of Representatives, is simply that it takes away the injunction process; it is an 
anti-injunction bill; it merely deprives the injured party of his relief m equity. 

The committee will see that the purpose of this law, if it were enacted, and it had 
the construction which its advocates contend for, its effect would not change the law 
as to what property is nor to make lawful those things which are now unlawful, but 
simply to take away from the persons whose property rights are affected by the unlaw¬ 
ful acts the right to go into court of equity and seek the protection of an injunction. 
Indeed, if you will look at this bill closely, I think the courts in their struggle to main¬ 
tain the law would be very apt to say it does not even do that, because if you will look 
at this last section 266c, apparently the last clause, colors all that has gone before, “or 
from doing any act or thing which might lawfully be done in the absence of such 
dispute by any party thereto.” (S. hearings, p. 256, pt. 4.) 

You can not enjoin them from doing lawful acts. A court of equity will turn you 
out in a minute unless you bring your case within jurisdiction of the court. You have 
to show that unlawful acts are being done, you have to show why they are unlawful, 
you have to show the injury is irreparable, and you have to show you have not that 
adequate remedy at law which is essential. The law now is that f these things are 
lawful they can not be enjoined by a court of equity; they will not be, and they 
never are. (Senate hearings, p. 271, pt. 4.) 

The substance of all this is that Mr. Davenport, leading counsel in 
opposition, says: (1) I am dwelling on the Adair case (and he might 
have included the Debs and Bitterman cases), notwithstanding that 
it is entirely irrelevant. (2) The bill will not admit of a construction 
twhich forbids an injunction to prevent any unlawful act, since the 
last clause colors and controls all the preceding. (3) The bill does 
not forbid equity to enjoin illegal acts, and equity will not enjoin 
lawful acts. 


72 


LIMITING FEDERAL INJUNCTIONS. 


QUESTION OF CONSTITUTIONALITY. 

I shall not devote much time on the question of constitutionality; 
though hours of the subcommittee’s time has been given up for what 
I consider to be absurd attempts to show Congress to be destitute of 
power to enact this or any similar bill. I shall not interpose what 
might be called a constitutional argument, properly so called, since 
that appears to be entirely unnecessary; but in order to remove 
a possible doubt in any mind I will condense a few propositions and 
citations. 

The contentions of counsel when reduced to simplest terms niean 
just this: That when Congress had acted under its constitutional 
power and had established a Federal court, common law and equity 
powers of courts immediately flowed out of the constitution into these 
judicial receptacles. It is only necessary to briefly examine this new 
doctrine to see the absurdities to which it would lead. 

Here is an important fact, persistently overlooked in discussions of 
counsel. The common law courts of England, from King’s Bench 
down, in addition to administering statutory law and the common 
law proper, exercised certain parliamentary powers, so called to dis¬ 
tinguish them from the legislative powers of Parliament, but which were 
in substance and effect powers of legislation. That is to say, they 
assumed the prerogative of determining what public interest and 
policy required, if the question had not been irrevocably settled by 

E recedents. In our schemes of government, National and State, as 
as been many times decided, courts have nothing to do with the 
policy of laws. It is their function to ascertain and declare what the 
law is, leaving questions of policy to the legislature. In the English 
system the legislative and judicial departments were, and are, entirely 
independent of each other. 

It is true that the courts are bound by acts of Parliament, as con¬ 
strued by them, but outside the statutes their powers were as free 
from limitations as those of Parliament itself, they being here the 
exponents and final arbiters of public policy for the Kingdom. 
Many common-law rules and principles were established in the exercise 
of these ultra-judicial powers. The framers of the Constitution were 
familiar with all this, and their knowledge of it was no doubt a pre¬ 
dominating reason for rejecting the common law as a part of our 
system. The result is that our Federal courts possess the equitable 
jurisdiction of English chancery courts, but do not possess their 
extra-judicial, or legislative, powers. When we speak of the powers 
of our courts we mean their jurisdiction, including what may be 
termed their implied jurisdiction, meaning those powers which are 
necessarily inciclental to the effective exercise of the jurisdiction. 
4nd when Congress sees fit to limit or subtract from the jurisdiction, 
the incident, to wit, the power, falls with the principal thing. 

It is true that in the part of the Constitution providing for the judi¬ 
ciary jurisdiction is confined as there specified without limitation or 
reservation. It does not follow, however, that the jurisdiction is not 4 
without limitation in the Constitution. It is necessarily subject to 
each limitations and exceptions as may be imposed by Congress, 
which by the same instrument is given power to establish the courts, 
and by necessary implication, to define and limit, as well as from time 
to time to subtract from, the jurisdiction. 


LIMITING FEDERAL INJUNCTIONS. 


73 


But it is said that to concede this would be conceding to Congress 
the power to destroy the courts. This is undoubtedly true, but what 
of it ? There never has been a time from the assembling of the first 
Congress to the present when Congress had not the power to destroy, 
not only the courts but the executive department, and even itself. 
This is well known, and the methods by which it might do this are 
obvious; but a supposition that the Congress would ever do such any 
thing is so ridiculous that the topic need not be pursued in detail. 

The authorities in support of the foregoing propositions are ample. 

In Cary v. Curtis (3 How., 236, 254) the Supreme Court said: 

The courts of the United States are all limited in their nature and constitutions, 
and have not the powers inherent in courts existing by prescription, or by the common 

law. 

In section 720 of the Revised Statutes of the United States we have 
a statute prohibiting the courts from issuing injunctions in certain 
cases, and the constitutional validity of that statute was upheld in 
Sharon v. Terry (36 Fed. R., 365). And an examination of the 
judiciary act of 1789 will discover therein many limitations upon 
jurisdiction not to mention subsequent statutes. The cases of Ex 
parte Robinson (19 Wall., 505) and Finck v. O’Neil (106 U. S., 272) 
may also be cited as authority to the same effect. In the latter case 
it appeared that Congress had taken from the court all power to 
enforce its judgments, and the act of Congress was upheld by the 
Supreme Court. In the opinion we find these highly significant 
words: 

The United States can not enforce the collection of a debt from an unwilling debtor 
except by judicial process. They must bring suit and obtain a judgment. To reap 
the fruit of that judgment they must cause an execution to issue,. The courts have 
no inherent authority to take any one of these steps, except as it may have been con¬ 
ferred by the legislative department; for they can exercise no jurisdiction except as 
the laws confer and limit it. 

A number of State cases have been desperately resorted to by 
opposing counsel to supply the lack of Federal authority. But the 
constitutions of the various States themselves provide for and estab¬ 
lish the courts, partition the powers of government in detail, prescrib¬ 
ing safeguards and limitations; whereas, in the Federal system full 
and complete control of the matter has been delegated to Congress. 
Nor should the fact be overlooked that State decisions on the sub¬ 
ject are often based upon precedents of the common law, which, as is 
well known, is no part of the Federal system. A striking illustration 
of this divergence of State from national view is seen in Ex parte 
McCowan (139 N. C., 95), where k was said: 

We are satisfied that at common law the acts and conduct of the petitioner, as set 
out in the case, constitute a contempt of court, and if the statute does not embrace this 
case and in terms repeal the common law applicable to it, we would not hesitate to 
declare the statute in that respect unconstitutional and void. * * * 

Gentlemen of the committee, I feel that I should detain you no 
longer. Thanks, for your patient attention. 


o 


LB 0 ’12 


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